Andhra Pradesh High Court - Amravati
Bangaru Venkata Ramana Seshavataram ... vs Grandhi Bangaram on 2 September, 2024
APHC010457062008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY, THE SECOND DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
I.A.NO.4 OF 2024
IN / AND
APPEAL SUIT No.537 OF 2008
Between:
1. BANGARU VENKATA RAMANA SESHAVATARAM (DIED),
KHAIRATABAD CIRCLE, HYDERABAD.
2. BANGARU ANNAPURNA DEVI, W/O. LATE VENKATA RAMANA
SESHAVATARAM PROPERTY R/O. D.NO. 18-3-2, PALACOLE,
PJCJC, WEST GODAVARI DISTRICT.
3. BANGARU NAGA SATYA VISWANADHAM, S/O. LATE
VENAKATA RAMANA SESHAVATARAM PROPERTY R/O. D.NO.
18-3-2, PALACOLE, PJCJC, WEST GODAVARI DISTRICT.
...APPELLANT(S)
AND
1. GRANDHI BANGARAM, W/O. VEERA VENKATA
SATYNARAYANA PROPERTIES R/O. MANGALAVARAPUPETA,
RAJAHMUNDRY, E.G. DISTRICT.
2. KANKATALA RAMA MANI, W/O. SUBBAYYA PROPERTIES R/O.
INNISPETA, RAJAHMUNDRY, E.G. DISTRICT.
3. GOLLA VIJAYA KUMARI, W/O. JAGDESH KUMAR PROPERTIES
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R/O. PALLIVEEDHI, VIJAYAWADA, KRISHNA DISTRICT.
4. BAMIDIPATU NIRMALA, W/O. SATYANARAYANA MURTHY
CORRESPONDENT, RAVITEJA PUBLIC SCHOOL R/O.
PALACOLE, PJCJC, WEST GODAVARI DISTRICT.
5. YAKKALA SRINIVAS, R/O. PALACOLE, PJCJC, WEST
GODAVARI DISTRICT.
6. KARLAPATI SEETHAKUMARI, W/O. SIVA RAO HOUSEWIFE
R/O. 9TH AVENUE, HARRINGTON ROAD, CHETPUT, CHENNAI -
600031. TAMIL NADU STATE
7. KARLAPATI HYMAVATHI, W/O. PRASADA RAO HOUSEWIFE
R/O. GANDHI NAGAR, HYDERABAD - 20.
8. V SYAMALA, W/O. SARATH KUMAR HOUSEWIFE NAVAJEEVAN
AGENCIES, NO. 21, GODOWN STREET, CHENNAI - 1, TAMIL
NADU STATE.
...RESPONDENT(S):
IA NO: 1 OF 2008(ASMP 1195 OF 2008
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased to stay of all further proceedings pursuant to the Judgment
and Decree dated 16-4-2008 passed by the Court of the 1st Additional
District Judge, West Godavari Distirct, Eluru in O.S. No. 6 of 2000
pending disposal of the regular appeal.
IA NO: 2 OF 2008(ASMP 2072 OF 2008
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased to direct the trial court to appoint an Advocate-receiver for
plaint A and B schedule properties and manage them during the
pendency of the above appeal and deposit the income to the credit of the
suit and permit the petitioners herein to withdraw their share of the
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income or in the alternative to direct the respondents/appellants to
deposit the approximate income derived towards the petitioner's share
from plaint A and B suit schedule properties and permit the petitioners to
withdraw the same pending disposal of the above appeal and pass such
other further orders as this Hon'ble Court may deem fit and in the
circumstances of the case.
IA NO: 1 OF 2018
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased Fix an early date for hearing of the AS No.537 of 2008
IA NO: 1 OF 2024
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased Pleased to condone the delay of 2846 days in filing the
present application seeking to set aside the dismissed for default order
dated 25-04-2016 against the Respondents No. 1 and 2 in AS No. 537 of
2008 and restore the same into file and pass
IA NO: 2 OF 2024
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased Pleased to condone the delay of 117 days in representing the
IA (SR) No. 18787 of 2024 in AS No. 537 of 2008 and pass
IA NO: 3 OF 2024
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased Pleased to set aside the dismissed for default order dated 25-
04-2016 against the Respondents 1 and 2 in AS No. 537 of 2008 and
pass
IA NO: 4 OF 2024
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
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be pleased pleased to receive the additional evidence by receiving the
documents enclosed herewith and pass
Counsel for the Appellant(S):
1. P DURGA PRASAD
Counsel for the Respondent(S):
1. T SREEDHAR
2. K SITA RAM
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 Appellants/defendants 1 to 3 challenging
the Decree and Judgment, dated 16.04.2008, in O.S. No.06 of 2000
passed by the learned I Additional District Judge, West Godavari, Eluru
[for short 'the trial Court']. The Respondents herein are the plaintiffs 1 to
3 and defendants 4 to 8 in the said Suit.
2. The plaintiffs filed a Suit to pass a preliminary decree in their favour
for partition of items 1 to 3 in plaint A schedule properties into 2 equal
halves and to allot one such share in item No.1 to the 3 rd plaintiff, one
such share in item No.2 to the 2nd plaintiff and one such share in item
No.3 to the 1st plaintiff as per the bequests made by their father Bangaru
Viswanadham under a registered will dated 17.03.1994, for partition of
plaint B schedule properties into 2 equal halves and to allot one such
share to them jointly, to order rendition of accounts in respect of the
income derived from plaint A and B schedule properties from 11.09.1999
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till the date of delivery of their shares, to ascertain future profits on a
separate application and for costs.
First defendant died on 11.07.2005 leaving behind him the second
defendant who is his wife, the third defendant, who is his son and the
defendants 6 to 8 who are his daughters.
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.6 of 2000, are as
under:
The plaintiffs 1 to 3 are the sisters, the first defendant is their
brother and all of them are the children of late Bangaru Viswanadham
and his wife Ratna Manikyam. The second defendant is the wife of the
first defendant and the third defendant is their son. The said
Viswanadham and the first defendant were living as members of joint
family which possessed plaint A and B schedule properties as joint family
members. During his life time the said Bangaru Viswanadham executed a
registered will dated 17.03.1994 bequeathing his undivided half share in
item 1 of plaint A schedule building to the third plaintiff, his undivided half
share in item No.2 of plaint A schedule to the second plaintiff and his
undivided half share in item 3 of the plaint A schedule to the first plaintiff
after reserving life interest for his wife Ratnam Manikyam. The said will
was executed by him in a sound and disposing state of mind and it was
his last will and testament. Prior to the execution of the said will he has
executed another registered will dated 06.08.1984 making various
bequests to his daughters and others. By virtue of the execution of the
will dated 17.03.1994 the said Viswanadham has revoked his earlier will
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dated 06.08.1984. The said Viswanadham died on 30.07.1994 and after
his death his wife Ratna Manikyam lived for a period of 5 years and died
on 10.09.1999. During the life time of Viswanadham, his only son i.e., first
defendant herein did not properly look after him and therefore in the will
dated 17.03.1994 it was clearly written by Viswanadham that he had no
intention to give any property to his son or daughter-in-law or to his
grandson i.e., third defendant. Just 15 days prior to his death the said
Viswanadham came to see his wife, who was then staying in the house of
the first plaintiff at Rajahmundry and stayed there for 15 days and
thereafter suddenly died on 30.07.1994 at Rajahmundry in the house of
the first plaintiff, lateron his wife was also not looked after by the first
defendant even though she lived for 5 years after the death of her
husband and as such she was staying along with the first plaintiff and
died at her house at Rajahmundry. Item No.2 of plaint A schedule
property was let out to the fourth defendant who is running a convent
school in that building and she has been paying a monthly rent of
Rs.3,000/- and item No.3 of plaint A schedule building was let out by the
first defendant to the fifth defendant on a monthly rent of Rs.1500/-,
therefore, the first defendant is getting monthly income of Rs.4,500/- on
items 2 and 3 of plaint A schedule property and he is residing in item
No.1 of plaint A schedule property. The plaintiffs got issued a registered
notice dated 05.03.1998 to the first defendant demanding for partition of
plaint A and B schedule properties into 2 equal shares and to allot one
such share to them. First defendant received the said notice and got
issued a reply notice dated 05.05.1998 with all false and invented
allegations.
5. The first defendant filed a written statement denying all the
contents of the plaint and further contended as under:
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During the life time of Bangaru Viswanadham, the plaintiffs gave
pressure and undue influence on him and forced him to execute a will on
17.03.1994 and therefore the said will executed by him was not with his
free consent and is not tenable in law. Viswanadham executed a will on
25.04.1994 in a sound and disposing state of mind bequeathing his half
share in the plaint schedule properties to the wife of first defendant i.e.,
second defendant herein and it is his last will. He has mentioned in the
said will that he has no intention to give any property to the plaintiffs, as
he has given them many gold and silver articles at the time of their
marriages. The plaintiffs have no title or interest over the plaint schedule
properties. During the life time of Bangaru Viswanadham and Ratna
Manikyam, the defendants 1 to 3 have looked after them with love and
affection and the plaintiffs never looked after them at any time. After the
death of Bangaru Viswanadham, the second defendant took possession
of the plaint schedule properties and she has been in possession and
enjoyment of the same as the lawful owner with absolute rights. The
second defendant is realizing only Rs.500/- as rent from item No.2 and
Rs.250/- from item No.3 of plaint A schedule properties.
6. The second defendant filed a written statement denying all the
contents of the plaint and further contended as under:
The will dated 17.03.1994 executed by Bangaru Viswanadham is
not his last will and testament, plaintiffs obtained the alleged will by undue
influence and by playing fraud. Bangaru Viswanadham executed a will on
25.04.1994 in a sound and disposing state of mind, bequeathing his half
share in the plaint schedule properties in favour of second defendant and
in the said will Bangaru Viswanadham has mentioned that he has
cancelled the earlier will dated 17.03.1994. During the life time of
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Bangaru Viswanadham and Ratna Manikyam they lived with the
defendants 1 to 3 at Palakol. After the death of Viswanadham, his wife
went to the house of first plaintiff at Rajahmundry for better medical
treatment for few days prior to her death and died at Rajahmundry.
Second defendant got issued a public notice dated 17.09.1997 cautioning
the public that consequent to the death of Bangaru Viswanadham the will
dated 25.04.1994 executed by Bangaru Viswanadham came into force
and the second defendant has got title over the properties.
7. The fourth defendant filed a written statement denying the contents
of the plaint and further contended as under:
The fourth defendant is not a necessary party to the suit. The
second defendant has let out portion of plaint A schedule building to the
fourth defendant and the fourth defendant has been paying the rent
regularly to the second defendant.
8. The sixth defendant filed a written statement, which was adopted
by the defendants 7 and 8, denying all the contents of the plaint and
further contended as under:
The plaintiffs have fabricated a false will as if it was executed by
Bangaru Viswanadham on 17.03.1994. The attestors and scribe of the
said will are the close associates of the plaintiffs. Bangaru Viswanadham,
who is the grandfather of the sixth defendant executed a will dated
25.04.1994 in a sound and disposing state of mind and it was his last will,
subsequently he died on 30.07.1994 and after his death the said will was
acted upon. The plaintiffs are not entitled to claim any profits or rents from
the plaint A and B schedule properties.
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9. Based on the above pleadings, the trial Court framed the following
issues:
(i) Whether the will dated 17.03.1994 of late Bangaru
Viswanadham is his last will or not?
(ii) Whether the will dated 25.04.1994 is true, valid and
executed by late Bangaru Viswanadham as stated by the
defendants and whether it is a forged one?
(iii) Whether the plaintiffs are entitled to seek partition of A
and B schedule properties and for allotment and
possession of their respective shares?
(iv) Whether the defendants are liable to render account of
the income from A and B schedule properties and pay
the plaintiffs share from 21.09.1999?
(v) Whether the plaintiffs are entitled to future profits?
(vi) To what relief?
10. During the course of trial in the trial Court, on behalf of the Plaintiffs,
PW1 to PW4 were examined and Ex.A1 to Ex.A5 were marked. On
behalf of the Defendants DW1 to DW4 were examined and Ex.B1 and
Ex.B2 were marked. Ex.X1 Expert's report was marked for Commissioner.
11. After completion of the trial and on hearing the arguments of both
sides, the trial Court decreed the suit with costs vide its judgment, dated
16.04.2008 against which the present appeal is preferred by the
appellants/defendants 1 to 3 in the Suit questioning the Decree and
Judgment passed by the trial Court.
12. The application in I.A.No.4 of 2024 is filed by the
petitioners/appellants with a prayer to receive certain documents
enclosed with the petition as additional evidence in A.S.No.537 of 2008.
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13. Heard Sri P.Durga Prasad, learned counsel for appellants and
Dr.S.Rajani, learned counsel, representing Sri T.Sridhar, learned counsel
for respondents.
14. The learned counsel for appellants would contend that the decree
and judgment passed by the trial Court is contrary to law and the Court
below grossly erred in not appreciating the oral and documentary
evidence available on record. He would further contend that the Court
below ought to have gave finding that Ex.A1 will dated 17.03.1994
executed by Bangaru Viswanadham is not his last will and testament and
that during his life time of Bangaru Viswanadham, the plaintiffs played
fraud and undue influence on their father and obtained Ex.A1 will. He
would further contend that the learned trial Judge ought to have seen that
Bangaru Viswanadham during his life time executed Ex.B1 will in a sound
and disposing state of mind.
15. Per contra, the learned counsel for respondents would contend that
on appreciation of the entire evidence on record, the learned trial Judge
rightly decreed the suit and the appeal may be dismissed by confirming
the decree and judgment passed by the trial Court.
16. Now, in deciding the present appeal, the points that arise for
determination are as follows:
1. Whether the appellants/ petitioners in I.A.No.4 of 2024 in
the appeal are entitled the relief of receiving additional
evidence as prayed for?
2. Whether the alleged Ex.B1 will dated 25.04.1994 is
proved in accordance with law?
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3. Whether Ex.A1 will dated 17.03.1994 is proved in
accordance with law?
4. Whether the plaintiffs are entitled the relief of partition
as prayed in the plaint?
17. Point No.1:
Whether the appellants/ petitioners in I.A.No.4 of 2024 in
the appeal are entitled the relief of receiving additional
evidence as prayed for?
The application in I.A.No.4 of 2024 is filed by the petitioners under
Section 151 of Civil Procedure code at the fag end of the appeal, the suit
is instituted in the year 2000 and the decree was passed by the trial Court
on contest by both the parties on 16.04.2008 and the appeal was filed by
the defendants in the year 2008. The petitioners who are the appellants
filed an application under Section 151 of Civil Procedure Code at the fag
end of the disposal of the appeal on 20.07.2004. When there was a
specific provision in Civil Procedure Code to receive additional evidence,
the petitioner shall not be permitted to file a petition under Section 151
Civil Procedure Code.
Order XLI Rule 27 of Civil Procedure Code reads as under:
27. Production of additional evidence in Appellate Court.-
(1) The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the
Appellate Court. But if--
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(a) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have
been admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge
or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed
against was passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial
cause, the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to the produced,
by an Appellate Court, the court shall record the reason for its
admission.
The general principle is that the appellate Court should not travel
outside the record of the trial Court and cannot take any evidence in
appeal. However, as an exception under Order 41 Rule 27 of Civil
Procedure Code, enable the appellate Court to take evidence in
exceptional circumstances only. The proviso under Order 41 Rule 27
C.P.C. permits the party to produce additional evidence before the
appellate Court provided it has to be come under the ambit of order 41
Rule 27 of Civil Procedure Code.
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In the case on hand, the explanation offered by the petitioners for
filing the petition with delay is while giving instructions to his advocate for
proceeding with the hearing of the appeal, he came to know that the
material papers relating to the land ceiling declaration given by the first
defendant before the land ceiling tribunal is not placed in the suit. The
petitioners further pleaded that on verification of the record pertaining to
the case, some documents have to be found which are the paramount
importance for deciding the case as the said documents were mentioned
in the will executed on 25.04.1994. In the case on hand, as per the case
of the petitioners, the declaration before the land ceiling tribunal was filed
by the first defendant, the first defendant died during the pendency of the
suit, prior to his death he filed a written statement in the suit, there is no
whisper in the written statement of first defendant about the alleged filing
of declaration before the land ceiling tribunal. Admittedly, the first
defendant did not enter into the witness box. Admittedly, there is no
pleading in the written statement of first defendant, as stated supra, about
the filing of land ceiling declaration before the land ceiling Tribunal.
Therefore, without any pleading before the trial Court, those photostat
copies of the documents filed along with the petition shall not be received
as additional evidence after a lapse of 24 years. The documents said to
be received as additional evidence is Xerox copies, those are
inadmissible in evidence.
18. As stated supra, the application was filed under Section 151 of Civil
Procedure Code by invoking wrong provision of law, there was a specific
provision in the appellate Court at the appellate stage to receive
additional evidence viz., order 41 Rule 27 C.P.C., the petitioner
purposefully has not filed the petition under order 41 rule 27 C.P.C.
because the appellate Court shall not permit the parties to adduce
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additional evidence, if the conditions laid down under order 41 Rule 27 of
C.P.C. are not exist. Having failed to file these documents at the time of
filing of the suit by exercising due diligence, the appellants now at the
stage of fag end of the appeal in the month of July, 2024, the present
application is filed by the petitioners/appellants.
19. It is also made clear that any evidence which is received as
additional evidence in the appeal stage cannot be looked into without any
pleading in that record, it is well settled that in the absence of pleading,
evidence if any, produced by the parties cannot be considered. It is also
equally settled that no party should be permitted to travel beyond its
pleadings and that all necessary and material facts shall be pleaded by a
party in support of the case set up by it. A decision of a case cannot be
based on outside the pleadings of the parties, no evidence is permissible
to be taken on record in the absence of pleadings in that aspect. It is also
well settled that parties are not permitted to travel beyond the pleadings
in the case proceedings. Furthermore, in Ex.B1 alleged agreement of
sale dated 25.04.1994 there was a recital about the declaration given to
the land ceiling authorities which shows even in the year 1994 itself they
got knowledge about the said declarations, but the petitioners failed to
explain any reason for non production of those documents before the trial
Court before passing of the decree.
20. It is well settled principle of law in Bachhaj Nahar VS Nilima
Mandal1, held by the apex Court as follows:
A perusal of the plaint clearly shows that entire case of the plaintiffs
was that they were the owners of the suit property and that the first
defendant had encroached upon it. The plaintiffs had not pleaded,
(2008) 17 SCC 491
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even as an alternative case, that they were entitled to an
easementary right of passage over the schedule property. The facts
to be pleaded and proved for establishing title are different from the
facts that are to be pleaded and proved for making out an
easementary right. A suit for declaration of title and possession
relates to the existence and establishment of natural rights which
inhere in a person by virtue of his ownership of a property. On the
other hand, a suit for enforcement of an easementary right, relates
to a right possessed by a dominant owner/occupier over a property
not his own, having the effect of restricting the natural rights of the
owner/occupier of such property.
In the absence of pleadings the Court cannot make out a case not
pleaded, it is also more important that without any pleading before the
trial Court, the document cannot be received as evidence". As stated
supra, there is no pleading in the written statement of the defendants,
though they are having knowledge about the alleged filing declaration in a
land ceiling proceedings before land ceiling authorities by the first
defendant but they did not file the same for the reasons best known to
them.
21. Admittedly, this application is filed in the month of July, 2024, the
suit is instituted in the year 2000. Having defeated in the suit proceedings,
the present appeal is filed in the year 2008. It is also made it clear that
the conduct of filing of this application belatedly without proving any
diligence show by them as a matter of right these Xerox copies of
documents which are inadmissible in evidence cannot be received as
evidence. Furthermore, without any pleadings before the trial Court
reception of the documents in the appellate stage will not help the
appellant in any manner. It is also made clear that there are condition
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precedent before allowing a party to adduce any additional evidence at
the stage of appeal which specifically incorporate conditions to that effect
that the party inspite of due diligence could not produce the evidence and
the same cannot be allowed to be done at his leisure or sweet will. For
the aforesaid reasons, I do not find any grounds to allow the application,
accordingly, the point No.1 is answered against the appellants.
22. Point No.2:
Whether the alleged Ex.B1 will dated 25.04.1994 is
proved in accordance with law?
The relationship in between both the parties in the suit are not in
dispute. The case of the defendants is that late Viswanadham executed
Ex.B1 will dated 25.04.1994 and that it was his last will and testament. It
was pleaded by the plaintiffs in the plaint itself that Ex.B1 will is a forged
will. Therefore, the burden heavily casts on the defendant to prove Ex.B1
will in accordance with law. The alleged will is an unregistered will dated
25.04.1994. Viswanadham died in the year 1994 on 30.07.1994 after his
death his wife Ratnamanikyam lived for a period of 5 years and died on
10.09.1999. No provision is made in the alleged Ex.B1 by Viswanadham
to his wife towards her maintenance. As per the admissions of DW1, her
mother-in-law had no independent source of income and not having any
properties. It is also one of the strongest circumstance to disbelieve the
Ex.B1 will. Furthermore, Ex.B1 is an unregistered will. No doubt, no
importance will be given to the registered wills rather than unregistered
wills. The will is not a compulsory registrable document.
23. It is well settled that the onus probandi lies in every case upon the
party propounding a will and he must satisfy the conscience of the Court
17 VGKRJ
that the instrument so propounded is the last will of a free and capable
testator. The legal position in this regard is no more res integra and the
same has been well settled by the Apex Court in a case of Lalitaben
Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others2. In the
aforesaid case the Apex Court held "it is trite law that execution of will
must be held to have been proved not only when the statutory
requirements for proving the will are satisfied but the will is also found to
be ordinarily free from suspicious circumstances when such evidences
are brought on record, the Court may take aid of the presumptive
evidences also".
24. It is a well settled principle that in every case the burden lies on the
propounder of the will and it is the duty of the propounder of the will, he
has to satisfy the conscious of the Court that the instrument as
propounded is the last will of a free and capable testator, meaning
thereby obviously that the testator at the time when he subscribed his
signature on a will in a sound and disposing state of mind and memory
and ordinarily however, the onus is discharged as regards the due
execution of the will, if the propounder leads evidence to show that the
will bears the signature and mark of the testator and the will is duly
attested. This attestation however shall have to be in accordance with
Section 68 of Indian Evidence Act which requires that if a document is
required by law to be attested, it shall not be used as evidence until
atleast 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 evidence. The law is also
equally settled that in the event of there, being circumstances
2 (2008)15 SCC 365
18 VGKRJ
surrounding the execution of will, surrounded in suspicion, it is the
paramount duty on the part of the propounder to remove the suspicion by
leading satisfactory evidence. As stated supra, in the case on hand, no
satisfactory evidence is produced by the defendants to remove the
suspicious circumstances.
25. The propounder of the will is examined as DW1. Her affidavit filed
in lieu of chief examination. The contents of her written statement is
incorporated in her chief affidavit. As per the evidence of DW1, herself
and her husband D1 was present at the time of alleged execution of
Ex.B1 will by her father-in-law. It was suggested to DW1 in cross
examination by the learned counsel for plaintiffs that Ex.B1 was not
executed by late Viswanadham and the said Ex.B1 will is a forged will.
The said suggestion is denied by DW1. DW1 admits that one of the
attestor in the alleged Ex.B1 will is brother-in-law of her younger brother
Lakshmana Murthy and he was examined as DW2 and another attestor
K.Vikrama Chakravarthy is her younger brother and both of her brothers
are residents of Chennai. The second defendant i.e., DW1 admits in her
evidence in cross examination that at the time of execution of Ex.B1
herself and her husband were present and there is no recital in Ex.B1 that
the plaintiffs played fraud and undue influence on the executant and
obtained a will from him on 17.03.1994 against his will and without his
free consent. She further admits that her father-in-law was in sound and
disposing state of mind till 15 days prior to his death and her father-in-law
and mother-in-law went to the house of first plaintiff 15 days prior to his
death. She further admits that her mother-in-law has no independent
properties and income of her own and in Ex.B1 no provision was made to
the maintenance of her mother-in-law. She also further admits that her
father-in-law never issued any notice to the plaintiffs stating that the will
19 VGKRJ
dated 17.03.1994 i.e., Ex.A1 was obtained by them without his free
consent and free will and by playing fraud exercising undue influence
against him. She also further admits that even after the demise of late
Viswanadham, herself or her husband never got issued any such notice
to the plaintiffs. She also further admits that her father-in-law was
hospitalized at Rajahmundry for a period of one week prior to his death
and the first plaintiff admitted her father-in-law in the hospital at
Rajahmundry. She further admits that after receiving death message of
Viswanadham, her husband went to Rajahmundry and brought the dead
body to palakol.
26. DW2 is the one of the attestor in Ex.B1 alleged will. As per his
evidence Bangaru Viswanadham executed Ex.B1 will in his presence and
in the presence of Nageswara Rao, Karlapati Vikram Chakravarthy and
Madasu Peddaiah Naidu and the said Peddaiah Naidu scribed the will as
per the dictation of Bangaru Viswanadham and after preparation of the
will by the scribe, Bangaru Viswanadham has gone through the contents
and signed in it in his presence. He further admits that Bangaru
Viswanadham died at Rajahmundry while he was in the house of first
plaintiff. As per his statement, he does not remember whether the
defendants 1 and 2 are present at the time of execution of Ex.B1. He had
fairly admitted that there is no provision to the wife and daughters of late
Bangaru Viswanadham in Ex.B1 will.
27. DW3, who is another attestor and none other than the brother of
propounder of the will deposed in his evidence about the execution of
Ex.B1 will by Viswanadham. In cross examination, he admits that DW2 is
the brother-in-law of his brother and there was a sub-registrar office at
palakollu, but Ex.B1 was not registered. He further admits that he never
20 VGKRJ
heard that Bangaru Viswanadham had executed two wills prior to Ex.B1
and he further admits there is no provision in Ex.B1 to the wife and
children of late Bangaru Viswanadham.
28. As stated supra, DW1 is the daughter-in-law of late Bangaru
Viswanadham and as per the recitals of Ex.B1, Bangaru Viswanadham
intends to give all properties to the second defendant i.e., daughter-in-law
of the testator by ignoring and excluding his wife and children. As noticed
supra, it was also not in dispute by the defendants that no provision was
made by the Viswanadham in Ex.B1 towards maintenance of his wife and
his wife was not having any properties of her own.
29. The learned counsel for appellants relied on a Judgment of Delhi
High Court in FAO.No.280 of 1996, in that decision it was held as follows:
It is well settled proposition of law that by the execution of a will the
natural heirs can be deprived of inheritance and it will not cast any
suspicion because the whole idea behind the execution of the will is
to interfere with the normal line of succession. So the natural heirs
would be debarred whenever the testator wants to do so. It will not
in each and every case like any cause of suspicion. In fact in order
to protect the right of his wife the deceased J. Massey bequeathed
his property in her favour to the exclusion of his other legal heirs.
The testator and respondent No. 1 were living together in this
house. All these appellants had left them after their marriage. So
naturally the husband had a mind to protect his wife economically
hence must have executed this will. It was but natural for a
husband to secure his wife economically particularly when the
children after marriage had left them. No suspicious circumstance
exist in such a case. Mere deprivation of certain Class-I heirs is no
ground to doubt the will. Circumstances of each case has to be
21 VGKRJ
looked in arriving at the conclusion about the genuineness of the
will.
30. Four Judge Bench of Apex Court in the case of Rani Purnima
Debi and another vs. Kumar Khagendra Narayan Deb and another3
held as follows:
We have already pointed out that the High Court was of the view
that there were suspicious circumstances attending the execution
of the will and that it was an unnatural will. The testator left behind
him his widow and his married daughter (who are appellants before
us) and an unmarried sister who was dependent upon him. Besides
these, the testator had a number of other relations who were much
nearer to him than the respondent. Even if we leave out of account
the married daughter and the other nearer relations, the widow and
the sister were certainly expected to be properly provided for by the
testator. It is not in dispute that the relations between the testator
and his wife and sister were good. In these circumstances, we
should have expected something better than what is provided in the
will for these two, All that the will says is that the wife and the sister
would be suitably maintained by the respondent during their life-
time. No amount is specified which should be given to these two
ladies as maintenance and no charge is created on the properties
left by the testator which were considerable. In effect, the two ladies
were left to the tender mercies of the respondent in the matter of
their maintenance. Further the result of this will is that the daughter
would be completely disinherited. The testator had a number of
children but all had died many years before and only one daughter
was alive at the time of his death. She was married and on behalf
of the propounder it is said that the relations between the testator
AIR 1962 SC 567
22 VGKRJ
mid her husband were not very happy. The evidence, however,
does not show that the relations between the testator and his son-
in-law were particularly strained at the time of the execution of the
will. In any case there is no satisfactory evidence to show that
relations between the testator and his daughter were bad, even if
the relations between him and his son-in-law were not of the best,
In the circumstances we should have expected the testator to make
some provision for the daughter, particularly when it is said that she
was not well-off. There is no doubt therefore that the will is most
unnatural and that is a suspicious circumstance which must be
satisfactorily explained before the respondent can get letters of
administration.
In the case on hand, the alleged testator in Ex.B1 died on
30.07.1994 within 3 months after the alleged unregistered will and left
behind him his wife and no arrangement is made in the alleged will to his
wife Ratna Manikyam, who lived for a period of 5 years after the death of
Viswanadham and who died on 10.09.1999, no provision is made in the
alleged Ex.B1 by Viswanadham to his wife towards her maintenance. As
per the own admissions of propounder of the will, DW1, her mother-in-law
had no independent source of income and not having any properties and
entire properties in Ex.B1 are bequeathed by Viswanadham to his
daughter-in-law. Therefore, it is also one of the strong circumstance to
disprove the Ex.B1 will. The propounder has unable to dispel the
suspicious circumstances which surround the execution and attestation of
the alleged Ex.B1 will.
31. Another suspicious circumstance to disbelieve the alleged will is,
DW2 is none other than the brother-in-law of the brother of the
profounder of the will and DW3 is none other than the own brother of
23 VGKRJ
profounder of the alleged Ex.B1 i.e., DW1. As per the own admissions of
DW2, he does not remember whether the first and second defendants
were present at the time of Ex.A1 and there is no provision to the wife
and daughters of late Bangaru Viswanadham in Ex.B1 will and as per the
admissions of DW3, he is none other than the own brother of the
profounder of the will and the Ex.B1 was not yet registered though there
was a sub-registrar office at palakollu. Here, the profounder of the alleged
will Ex.B1 fails to examine the another attestor in the will. Therefore, it is
also one of the strong suspicious circumstance to disprove the alleged
Ex.B1 will.
32. Another important circumstance to disprove the alleged Ex.B1 will
is the testator is in the habit of executing the registered wills. The
execution of Ex.A1 and Ex.A5 are not disputed by the respondents.
Ex.A1 and Ex.A5 are executed prior to alleged Ex.B1 will. As per the own
admissions of brother of the profounder of the will i.e., DW3, there was a
sub-registrar office at Palakollu, but no steps are taken to register the
alleged Ex.B1 will, it is also one of the strong suspicious circumstance to
disprove the will.
33. Admittedly, the alleged Ex.B1 will was sent to the Government
Forensic Science Laboratory, Hyderabad, at the instance of the plaintiffs
along with admitted documents Ex.A1 and Ex.A5, for opinion of expert,
the Government expert gave an opinion that the disputed signatures in
Ex.B1 are not that of person, who signed on Ex.A1 and Ex.A5. The
Government expert was examined as PW4. In his cross examination, his
evidence is not at all shattered on the material aspects of the case. Ex.X1
report of the expert clearly goes to show that the expert thoroughly
examined the original documents in all aspects of hand writing,
24 VGKRJ
identification and detection of forgery with sophisticated instrument in
State Forensic Science Laboratory, Hyderabad. As per his own
admissions, PW4 is having experience of 20 years in the field of
examination of documents. As states supra, the evidence of PW4 also
supports the case of the plaintiffs that Ex.B1 will is not at all a genuine will.
No doubt, the opinion of hand writing expert is not a conclusive proof, but
it has to be read along with other evidence on record. In the case on hand,
the evidence of PW4 coupled with other oral and documentary evidence
and the suspicious circumstances, as stated supra, which are surrounded
the Ex.B1 will shows that Ex.B1 will is not genuine and it is not proved by
the profounder of the will in accordance with law.
34. The learned counsel for appellants relied on a judgment in Civil
Appeal No.5991 of 2002, in that case it was held as follows:
The evidentiary value of the opinion of expert depends on the facts
upon which it is based and also the validity of the process by which
the conclusion is reached. Thus, the idea that is proposed in its
crux means that the importance of an opinion is decided on the
basis of the credibility of the expert and the relevant facts
supporting the opinion so that its accuracy can be cross checked.
Therefore, the emphasis has been on the data on basis of which
opinion is formed. The same is clear from following inference:
"Mere assertion without mentioning the data or basis is not
evidence, even if it comes form expert. Where the experts give no
real data in support of their opinion, the evidence even though
admissible, may be excluded from consideration as affording no
assistance in arriving at the correct value."
25 VGKRJ
35. The learned counsel for appellants also relied on a judgment in
Civil Appeal No.3961 of 2001 of Apex Court, in that decision, it was held
as follows:
It is to be noted that under Sections 45 and 47 of the Evidence Act,
the Court has to take a view on the opinion of others, whereas
under Section 73 of the said Act, the Court by its own comparison
of writings can form its opinion. Evidence of the identity of
handwriting is dealt with in three sections of the Evidence Act. They
are Sections 45, 47 and 73. Both under sections 45 and 47 the
evidence is an opinion. In the former case it is by a scientific
comparison and in the latter on the basis of familiarity resulting from
frequent observations and experiences. In both the cases, the
Court is required to satisfy itself by such means as are open to
conclude that the opinion may be acted upon. Irrespective of an
opinion of the Handwriting Expert, the Court can compare the
admitted writing with disputed writing and come to its own
independent conclusion. Such exercise of comparison is
permissible under Section 73 of the Evidence Act. Ordinarily,
Sections 45 and 73 are complementary to each other. Evidence of
Handwriting Expert need not be invariably corroborated. It is for the
Court to decide whether to accept such an uncorroborated
evidence or not. It is clear that even when experts evidence is not
there. Court has power to compare the writings and decide the
matter. [See Murari Lal vs. State of Madhya Pradesh (1980) 1 SCC
704].
In the case on hand, expert evidence is not a sole basis to come to
conclusion of Ex.B1 will. As stated supra, that has to be read along with
other evidence on record, as stated above, there are several suspicious
circumstances to doubt the alleged Ex.B1 will. The evidence of PW4
26 VGKRJ
shows that he is having experience in the field of examination of
documents for a period of 20 years and the expert report also shows that
the Ex.B1 will is not a genuine will.
Here, unlike other documents the will speaks from the death of the
testator and therefore, the maker of the will is never available for
deposing as to the circumstance in which the will came to be executed.
36. In the case of Janki Narayan Bhoir vs. Narayan Namdeo
Kadam4, it was held as follows:
The one attesting witness examined, in his evidence has to satisfy
the attestation of a will by him and the other attesting witness in
order to prove there was due execution of the will. If the attesting
witness examined besides his attestation does not, in his evidence,
satisfy the requirements of attestation of the will by other witness
also it falls short of attestation of will at least by two witnesses for
the simple reason that the execution of the will does not merely
mean the signing of it by the testator but it means fulfilling and proof
of all the formalities required under Section 63 of the Succession
Act. Where one attesting witness examined to prove the will under
Section 68 of the 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. Where
one attesting witness is examined and he fails to prove the
attestation of the will by the other witness there will be deficiency in
meeting the mandatory requirements of Section 68 of the Evidence
Act.
2003 2 SCC 91
27 VGKRJ
In the case on hand, the two attesting witnesses in Ex.B1 alleged
will is, own brother of the profounder of the will and brother-in-law of
another brother of the profounder of the will. Through the other attestor is
available, the profounder of the alleged will fails to examine the another
attestor in the alleged will.
37. The learned counsel for appellants relied on a judgment in
C.A.No.7434 of 2008, in that case, the Apex Court held as follows:
The law in regard to proof of a valid will is now well settled.
It has to be proved not only by proving the signature of the
executor but it should be found to be free from any suspicious
circumstances. Section 63(c) of the Indian Succession Act reads as
under:
Section 63.-Execution of unprivileged wills.- Every testator, not
being a soldier employed in an expedition or engaged in actual
warfare, or an airman so employed or engaged, or a mariner at
sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that
it was intended thereby to give effect to the writing as a Will.
(c) 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 or
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or the
28 VGKRJ
signature of such other person; 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 present at the same
time, and no particular form of attestation shall be necessary."
In the case on hand, the will is found to be surrounded by several
suspicious circumstances, as noticed supra, but the defendants failed to
remove the same.
38. The learned counsel for appellants placed a reliance in Ishwardeo
Narain Sing VS Kamta Devi5, in that decision it was held as follows:
The High Court had relied on the fact that the will was not
registered or deposited with District Registrar. There is nothing in
law which requires the registration of a will and wills are in a
majority of cases not registered at all. To draw any inference
against the genuineness of the will on the ground of its non-
registration appears to us to be wholly unwarranted.
The next point urged against the genuineness of the will was that
the entire property was dedicated in favour of a private charity and
the fact that since the execution of the will in 1930 and till his death
in 1934 no attempt has been made by the testator to erect a temple
or install a deity. In the first place it is not accurate to say that the
entire property was dedicated in favour of charity because provision
was made for the marriage of his only daughter. Further, there may
conceivably be diverse reasons which prevented the testator from
building a temple during his lifetime.
1954 AIR SC 280
29 VGKRJ
In the case on hand, as stated supra, the will is not a compulsorily
registrable document, the undisputed documents Ex.A1 and Ex.A5 shows
the testator is in the habit of executing registered wills and there was sub-
registrar office, Palakollu, but Ex.B1 is not yet registered and no steps are
taken to got registered the Ex.B1 alleged will though there was a sub-
registrar office at Palakollu. Another important circumstance to doubt the
genuineness of the Ex.B1 will is the testator died at the house of plaintiff
No.1, as he went to the house of first plaintiff at about 15 days prior to his
death to see his wife, who is staying at the first plaintiff's house at
Rajahmundry. The aforesaid suspicious circumstances, as noticed supra,
are not yet removed by the appellants. In the case on hand, the testator
bequeathed his entire property to his daughter-in-law by leaving his wife
to her fate, who was alive 5 years after the death of the testator, without
any provision for her maintenance. For the aforesaid reasons, I am of the
considered view that Ex.B1 will is not at all proved in accordance with law,
by the defendants, accordingly, the point No.2 is answered against the
defendants.
39. Point No.3:
Whether Ex.A1 will dated 17.03.1994 is proved in
accordance with law?
It is the case of the respondents/plaintiffs that the plaintiffs 1 to 3
are the sisters and the first defendant is their brother and all of them are
the children of late Bangaru Viswanadham and his wife Ratnamanikyam
and second defendant is the wife of first defendant and third defendant is
their son. The plaintiffs further pleaded that the said Viswanadham and
first defendant were living as members of joint family which possessed
plaint A and B schedule properties as joint family properties and during
30 VGKRJ
his life time the said Bangaru Viswanadham executed a registered will
dated 17.03.1994 bequeathing his undivided half share in item No.1 of
plaint A schedule building to the third plaintiff, his undivided half share in
item No.2 of plaint A schedule property to the second plaintiff and his
undivided half share in item No.3 of the plaint A schedule property to the
first plaintiff after reserving life interest for his wife Ratna Manikyam and
the said will was executed by him in a sound and disposing state of mind
and it was his last will and testament. The plaintiffs further pleaded that
prior to execution of the said will he had executed another registered will
on 06.08.1984 by making various bequests to his daughters and others
and by virtue of Ex.A1 will, the said Viswanadham has revoked his earlier
will dated 06.08.1984. In the case on hand, the testator made his
bequests with regard to his undivided half share in item Nos.1 to 3 of
plaint A schedule property under Ex.A1 registered will to the
daughters/plaintiffs. It has to be observed that the testator made his
bequest in favour of his daughters by giving life interest to his wife without
touching the undivided share of his only son i.e., first defendant. The
alleged execution of Ex.A1 will is not disputed by either first defendant or
other defendants. The contention of the defendants is that the plaintiffs
obtained the alleged Ex.A1 will by way of fraudulently and the plaintiffs
obtained Ex.A1 will by playing fraud. As stated supra, in Ex.B1 will also
the reference of Ex.A1 was made by the testator. It was not mentioned in
Ex.B1 will by the testator that the plaintiffs obtained Ex.A1 will
fraudulently. As stated supra, Ex.B1 alleged will is not at all proved in
accordance with law. The execution of alleged Ex.A1 will is not at all
disputed by the defendants. The contention of the defendants is that the
Ex.A1 will was obtained by playing fraud. Therefore, the burden is on the
defendants to prove the alleged fraud, but the same is not proved by the
31 VGKRJ
defendants. In Meena Pradhan and others vs. Kamla Pradhan and
another in Civil Appeal No.3351 of 2014, the Apex Court held that "one
who alleged fraud, fabrication, undue influence has to prove the same". In
the case on hand, the defendants alleged that the Ex.A1 will is obtained
by the plaintiffs by playing fraud and misrepresentation. As stated supra,
Ex.A1 will is a registered will. The appellants failed to prove the alleged
fraud and misrepresentation as pleaded by the appellants. No evidence is
placed by the appellants to prove the alleged fraud and undue influence.
40. In order to prove the alleged Ex.A1 will, the profounder of Ex.A1 will,
i.e., plaintiffs relied on the evidence of PW2 and PW3. PW2 is the first
attestor in the alleged Ex.A1 will. PW3 is fourth attestor in the alleged
Ex.A1 will. As per the evidence of PW2, he is the first attestor and he
knows late Bangaru Viswanadham since his childhood and the said
Viswanadham came to his house and informed him that he has executed
a will and requested him to attest the same and then he signed in the said
will brought by Viswanadham as an attestor and the Ex.A1 will is the
same. As per his evidence, the said Bangaru Viswanadham told him that
he got prepared Ex.A1 will and the signature therein was his signature
and then he asked him to attest the same and therefore, he attested it.
He further deposed in his evidence that the said Viswanadham was in a
sound and disposing state of mind when he signed on Ex.A1 will as an
attestor. Though PW2 was cross examined by the learned counsel for
defendants, in cross examination, nothing was shattered on the material
aspects of the case. In cross examination PW2 admits that late
Viswanadham himself read over the contents of Ex.A1 to him and asked
him to sign it as an attestor and then he has signed in it as an attestor.
The fourth attestor in Ex.A1 will is examined as PW3. As per the evidence
32 VGKRJ
of PW3, he knows late Bangaru Viswanadham and late Viswanadham
brought Ex.A1 will to his house and asked him to attest the same by
informing him that he got the said will prepared and the signature in it is
his signature and basing on the representation made by Bangaru
Viswanadham, he has signed in Ex.A1 as an attestor and at that time the
Bangaru Viswanadham was in a sound and disposing state of mind. In
cross examination, the evidence of PW3 is not at all disturbed on the
material aspects of the case. It is not the case of the defendants that the
PW2 and PW3 are the interested witnesses to the plaintiffs. The evidence
of PW2 and PW3 clearly proves about the execution of Ex.A1 will and the
Ex.A1 will is proved within the meaning of Section 123 of Transfer of
Property Act under Section 63 (c) of Indian Succession Act read with
Section 3 of Transfer of Property Act and the attestation of Ex.A1 will was
inconformity with the provisions of Section 3 of Transfer of Property Act.
41. It was held by four Judges Bench of Apex Court in Rani Purnima
Debi and another vs. Kumar Khagendra Narayan Deb and another 6
as follows:
There is no doubt that if a will has been registered, that is a
circumstance which may, having regard to the circumstances,
prove its genuineness. But the mere fact that a will is registered will
not by itself be sufficient to dispel all suspicion regarding it where
suspicion exists, without submitting the evidence of registration to a
close examination. If the evidence as to registration on a close
examination reveals that the registration was made in such a
manner that it was brought home to the testator that the document
of which he was admitting execution was a Will disposing of his
AIR 1962 SC 567
33 VGKRJ
property and thereafter he admitted its execution and signed it in
token thereof, the registration Will dispel the doubt as to the
genuineness of the will. But if the evidence as to registration shows
that it was done in a perfunctory manner, that the officer registering
the will did not read it over to the testator or did not bring home to
him that he was admitting the execution of a will or did not satisfy
himself in some other way (as, for example, by seeing the testator
reading the Will) that the testator knew that it was a Will the
execution of which he was admitting, the fact that the Will was
registered would not be of much value. It is not unknown that
registration may take place without the executant really knowing
what he was registering. Law reports are full of cases in which
registered Wills have not been acted upon : (see, for example,
Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang 179 Surendra
Nath v. Jnanendra Nath, air 1932 Cal 574 and Girja Datt Singh v.
Gangotri Datt Singh, (S) AIR 1955 sc 346. Therefore, the mere fact
of registration may not by itself be enough to dispel all suspicion
that may attach to the execution and attestation of a Will; though
the fact that there has been registration would be an important
circumstance in favour of the will being genuine if the evidence as
to registration establishes that the testator admitted the execution
of the will after knowing that it was a Will the execution of which he
was admitting.
42. In the case on hand, the evidence of PW2 and PW3 proves the
execution of Ex.A1 will. Another contention put forth by the defendants is
that they were informed by late Viswanadham that the plaintiffs obtained
Ex.A1 will by playing fraud and undue influence. As stated supra, the
execution of Ex.A1 registered will is not at all disputed by the defendants.
The contention of the appellants/defendants is that the Ex.A1 will is
34 VGKRJ
obtained by the plaintiffs by playing fraud and misrepresentation on the
testator of the alleged Ex.A1 will. It is relevant to say that the appellants
also relied on Ex.B1 alleged unregistered will, in Ex.B1 it was not
mentioned by the testator that the plaintiffs herein obtained Ex.A1 will by
playing fraud and misrepresentation. It is also noticed that the reference
of Ex.A1 was also made in Ex.B1 alleged will, but there is no whisper in
Ex.B1 will by the testator of the alleged will that Ex.A1 will is obtained by
playing fraud and misrepresentation by the plaintiffs. Furthermore, Ex.A2
is the legal notice issued by the plaintiffs to the first defendant and Ex.A3
is the reply notice issued by the defendants dated 05.05.1998. As per the
case of the first defendant, his father died on 30.07.1994, if really
Viswanadham informed the defendants 1 and 2 about the alleged fraud
played by the plaintiffs against him what prevented the defendants to
mention in Ex.A3 reply notice about the alleged fraud and
misrepresentation played by the plaintiffs. Except bald allegation in the
written statement of defendants 1 and 2, the details of alleged fraud is not
at all mentioned in the written statement. Another important circumstance
to disbelieve the version of the defendants is that, the testator of
Ex.A1/Viswanadham was alive nearly four and half months after
execution of Ex.A1 will, if there was any undue influence or fraud in the
alleged execution of Ex.A1 will, what prevented the testator of Ex.A1 or
first defendant to give registered notice to the plaintiffs. For the aforesaid
reasons, I am of the considered view that Ex.A1 will is proved in
accordance with law. Accordingly, the point No.3 is answered in favour of
the plaintiffs.
35 VGKRJ
43. Point No.4:
Whether the plaintiffs are entitled the relief of partition
as prayed in the plaint?
The undisputed facts are the plaintiffs 1 to 3 are the sisters and first
defendant is their brother and all of them are the children of late Bangaru
Viswanadham and his wife Ratna Manikyam. Bangaru Viswanadham
died in the year 1994 itself and 5 years after the death of Bangaru
Viswanadham, his wife Ratna Manikyam died in the year 1999. The
second defendant is the wife of the first defendant and third defendant is
their son and first defendant died during the pendency of the suit itself
and defendants 6 to 8 are added as per orders in I.A.No.2015 of 2005
before the trial Court. As noticed supra, the appellants relied on Ex.B1
alleged will and the plaintiffs relied on Ex.A1 will. As stated supra, the
Ex.B1 will is not proved in accordance with law by the appellants and it is
also noticed supra that Ex.A1 will is proved in accordance with law by the
plaintiffs. It is also made it clear that Ex.A1 will is executed by Bangaru
Viswanadham in respect of his undivided share in the plaint schedule
property without touching the undivided share of his son i.e., first
defendant. As notice supra, Ex.A1 will is proved in accordance with law.
Therefore, in view of my above findings, the plaintiffs are certainly entitled
the relief of partition of plaint A and B schedule properties and also
mesne profits as ordered by the learned trial Judge in the decree and
judgment. Therefore, I do not find any illegality in the decree and
judgment passed by the trial Court. Accordingly, the point No.4 is
answered.
44. In the result, I.A.No.4 of 2024 in A.S.No.537 of 2008 and
A.S.No.537 of 2008 are dismissed, confirming the decree and Judgment
36 VGKRJ
dated 16.04.2008, in O.S.No.6 of 2000 passed by the learned I Additional
District Judge, West Godavari, Eluru. Considering the facts and
circumstances of the case each party do bear their own costs in the
appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal
shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 02.09.2024
sj
37 VGKRJ
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
I.A.NO.4 OF 2024
IN / AND
APPEAL SUIT No.537 OF 2008
Date: 02.09.2024
sj
