Telangana High Court

M.Prema Latha vs Jaligama Prakash on 3 October, 2024

     THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
                          AND
       THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

            City Civil Court Appeal No.152 OF 2019

JUDGMENT:

(Per Hon'ble Smt.Justice M.G. Priyadarsini)

Aggrieved by the Judgment and Decree dated 22.11.2018

(hereinafter will be referred as 'impugned Judgment') passed in

O.S.No.835 of 2012 on the file of learned II Additional Chief Judge,

City Civil Court at Hyderabad (hereinafter will be referred as 'Trial

Court'), the sole plaintiff preferred the present Appeal to set aside

the impugned Judgment and Decree.

2. For the sake of convenience, the parties hereinafter are referred to

as they are arrayed before the Trial Court.

3. The brief facts of the case are that the sole appellant herein

i.e., plaintiff, who is the daughter Jaligama Balaiah, filed

O.S.No.835 of 2012 against her brothers, sister and their family

members, who are defendant Nos.1 to 5 for partition and separate

possession in respect of suit schedule property i.e., house bearing

MCH No.3-6-369/A/22 admeasuring 773 square yards situated at

Himayathnagar, Hyderabad.

4. The averments of plaint in brief are as under:

a) The plaintiff, defendant No.5 and defendant Nos.1 to 4 are

daughters and sons of Late Jaligama Balaiah @ Balappa 2 MB,J & MGP,J

respectively. Late Jaligama Balaiah @ Balappa alleged to have

purchased land admeasuring 948 square yards through three sale

deeds and later sold a piece of land admeasuring 185 square yards

to Sri Anajaiah and retained 773 square yards, which is the suit

schedule property. The father of plaintiff and defendants also

purchased a mulgi bearing No.5-8-563 admeasuring 98 square

yards situated at Top Khana Road, Nisan Shahi Raod, Hyderabad

and gifted the same to defendant Nos.1 to 4. Late Jaligama

Balaiah @ Balappa purchased open land in the name of his wife

admeasuring 500 square yards at Hayathnagar, Ranga Reddy

District and the same was partitioned among defendant Nos.1 to 4

by paying Rs.2,00,000/- to plaintiff in the year 2005.

b) After the death of Jaligama Balaiah @ Balappa, the plaintiff

and defendants became legal heirs and successors to the suit

schedule property. When the plaintiff visited the suit schedule

property on 21.10.2012 on the occasion of Dussara festival, she

found that defendant Nos.1 to 4 have constructed multi storied

building in the suit schedule property, which was not partitioned

after the death of their father. On enquiry, defendant Nos.1 to 4

stated that they are intending to sell the flats to the intending

purchasers. The plaintiff has 1/6th share in the suit schedule

property. Since the suit schedule property is not yet partitioned by

metes and bounds among the legal heirs of Jaligama Balaiah @ 3 MB,J & MGP,J

Balappa, the plaintiff prayed for partition of the suit schedule

property into six equal shares and thereby allot one such share to

her.

5. In reply to the above plaint averments, the defendant Nos.1

to 4 filed written statement, the brief averments of which are as

under:

a) During the life time of Jaligama Balaiah @ Balappa an

undated Will was executed in the year 1997 bequeathing the suit

schedule property and open land in favour of defendant Nos.1 to 4.

Jaligama Balaiah @ Balappa died on 25.03.1998 and his wife Smt.

J. Maniamma died intestate on 28.05.1989. By virtue of Will Deed,

defendant Nos.1 to 4 became absolute owners of the suit schedule.

Defendant Nos.1 to 4 entered into a development agreement cum

general power of attorney for construction of flats in the suit

schedule property on 29.08.2005 through a registered document

bearing No.3456/2005.

b) Jaligama Balaiah @ Balappa and his wife Maniamma during

their life time performed the marriages of plaintiff and defendant

No.5 by giving huge gold jewelries, cash and gifts etc. The plaintiff

and defendant No.5 were well off on the date of execution of

development cum general power of attorney between the developers

and owners on 29.08.2005. The plaintiff and defendant No.5 also 4 MB,J & MGP,J

signed as witnesses in the development agreement. The marriage

of the plaintiff was performed on 20.05.1969 and she left the

paternal house on the same day. Since the suit is filed on

22.11.2012 i.e., 12 years after the death of the father of the

parties, the suit is barred by limitation.

c) Defendant Nos.1 to 4 got three flats each in the suit schedule

property after giving 8 flats to the developer. Since the plaintiff did

not challenge the legality of the development agreement dated

29.08.2005 till 22.1.2012 i.e., the date of filing the suit, having

signed in it, the principle of estopple is applicable to this case.

When the property of the mother of the plaintiff and defendants

was partitioned by defendant Nos.1 to 4 through a registered

partition deed dated 26.07.2005, the plaintiff and defendant No.5

relinquished their joint ownership rights and shares in that

property.

d) The plaintiff has no share much less 1/6th share in the suit

schedule property and therefore, the plaintiff is not entitled for the

relief sought for. Thus, the defendants prayed for dismissal of the

suit.

6. Despite service of notice, defendant No.5 failed to appear

before the Court and thereby she was set exparte.

5 MB,J & MGP,J

7. Based on the above pleadings, the Trial Court has framed

the following three issues:

i) Whether Jaligama Balaiah executed a Will Deed in the year 1997 bequeathing the suit schedule property to defendant Nos.1 to 4?

ii) Whether the plaintiff is entitled for partition and separate possession of the suit schedule property?

iii) To what relief?

8. During the pendency of the case, defendant No.2 passed

away and thereby his legal representatives were brought on record

as defendant Nos.6 to 8. During the course of trial the sole

plaintiff got examined herself as PW1 and got marked Exs.A1 to

A4. On the other hand, defendant No.1 was examined as DW1

apart from examining one of the attestors of Will Deed as DW2 and

also got marked Exs.B1 to B6.

9. After considering the rival contentions, the Trial Court has

dismissed the suit. Aggrieved by the same, the sole plaintiff

preferred the present Appeal.

10. Heard Sri Vedula Srinivas, learned Senior Counsel

representing Ms. Vedula Chitralekha, learned counsel on record for

the appellant/plaintiff and Sri D.V. Sitarama Murthy, learned

Senior Counsel representing Mr. Avinash Reddy, learned counsel

on record for the respondents/defendants.

6 MB,J & MGP,J

11. It is to be seen that admittedly the present suit for partition

is filed in respect of suit schedule property i.e., house bearing MCH

No.3-6-369/A/22 admeasuring 773 square yards situated at

Himayathnagar, Hyderabad but in the cross examination she gone

to the extent of seeking partition of all the properties acquired by

her father i.e., shops at Malakpet, Mulgis at Osmangunj, plots at

Ramachandrapuram. Though the present suit is filed in respect of

suit schedule property, the plaintiff in her cross examination

expressed her opinion that she is seeking partition of all the

properties mentioned above. Thus, the plaintiff is seeking partition

of all the other properties, which are not included in the suit

schedule property of the present case. In Kenchegowda Vs.

Siddegowda 1 the Honourable Supreme Court observed that when

all the joint family properties are not made the subject matter of

the suit, nor the co-sharers have been impleaded, the suit for

partial partition is not maintainable. Thus, on this ground the suit

of the plaintiff is liable for dismissed.

12. At one end the plaintiff accedes that partition in respect of

suit schedule property was done in four units among her brothers

20 years ago and at the other end she is seeking partition of the

said suit schedule property again. Once the plaintiff has admitted

that partition in respect of suit schedule property has already been

1 (1994) 4 Supreme Court Cases 294 7 MB,J & MGP,J

done among her brothers, the plaintiff is estopped from seeking the

same relief, which was already exhausted. It is not the case of

plaintiff that partition took place between herself and her brothers.

13. The plaintiff-PW1 in her cross examination admitted that she

is aware of execution of Ex.B1 by her father about 15 years back in

a panchayath (settlement) conducted under the supervision of

Narsimha Pahelwan and another person Yadi Reddy as she was

shown the said Will. PW1 admitted that he came to know the

contents of the Will through her brother-in-law (husband of

defendant No.5). From these admissions it is very much clear that

the plaintiff-PW1 is well aware of execution of Ex.B1 Will Deed by

her father in favour of defendant Nos.1 to 4. But the plaintiff has

not at all mentioned the said aspect either in the plaint averments

or in her chief examination affidavit. Thus, it amounts of

suppression of material facts.

14. The only contention of the plaintiff-PW1 is that when she met

her father she was informed by her father that she will be given

one portion to her under Ex.B1. PW1 admitted that her four

brothers i.e., defendant Nos.1 to 4 reunited themselves and

expressed that they want to develop the suit schedule property.

Thus, it is an admitted fact that defendant Nos.1 to 4 entered into

a development agreement with some third parties in respect of suit

schedule property under Ex.B2. The plaintiff-PW1 admitted in her 8 MB,J & MGP,J

cross examination that she is one of the signatories at the attestor

column of Ex.B2. In her cross examination plaintiff-PW1 admitted

that her brothers paid some amounts to her and obtained

signatures at the time of entering into Ex.B2. Thus, it is very

much clear that the plaintiff-PW1 came to know about Ex.B2 on

29-08-2005 itself. A perusal of Ex.B2 discloses that the plaintiff-

PW1 was one of the signatories in the attestors column, it was

categorically mentioned at Page No.5 that late Jaligama Balaiah @

Balappa during his life time executed last Will in the year 1997

bequeathing the entire building, open plot and piece of the land

(suit schedule property) amongst his four sons only excluding his

both marries daughters. The plaintiff has not only suppressed

about existence of Ex.B2 but also suppressed with regard to her

being one of the signatories to Ex.B2. If at all the plaintiff is

aggrieved by execution of Ex.B2 - development agreement, then

certainly she ought to have challenged Ex.B2. Moreover, once the

plaintiff has received money from the defendants for signing in

Ex.B2, it is deemed that she has relinquished her rights over the

suit schedule property. It appears that though the plaintiff got no

share in the suit schedule property as per Ex.B1, the defendant

Nos.1 to 4 have paid amounts to plaintiff for relinquishing her

rights over the suit schedule property. If at all the plaintiff is

intending to claim any share in the suit schedule property, she

ought not to have received money from the defendants for signing 9 MB,J & MGP,J

in Ex.B2. It is also to be seen that the plaintiff in her pleadings

pleaded that late Jaligama Balaiah @ Balappa purchased open

land in the name of his wife admeasuring 500 square yards at

Hayathnagar, Ranga Reddy District and the same was partitioned

among defendant Nos.1 to 4 by paying Rs.2,00,000/- to plaintiff in

the year 2005. Thus, an inference can be drawn from this

statement that whenever there is a partition in respect of any of the

properties belonging to Jaligama Balaiah, it is between the

defendant Nos.1 to 4 and the plaintiff will be paid certain amount

to relinquish her rights over the said property.

15. These acts of plaintiff in suppressing the existence of Exs.B1

and B2 and not challenging them, filing suit for partition of suit

schedule properties, which were admitted to have already been

partitioned 20 years ago among her own four brothers, creating

any amount of suspicion in the version of plaintiff.

16. The plaintiff is not disputing execution of Will Deed by her

father, more particularly, when she was confronted with Ex.B1 she

admitted in her cross examination that her four brothers got

partitioned the suit schedule property in four units as per Ex.B1.

It is the contention of the plaintiff that when she demanded hr

share, they said that she does not have any share in the suit

schedule property. However, PW1 - plaintiff admitted she did not 10 MB,J & MGP,J

address any legal notice on refusal of division of suit schedule

property by defendant Nos.1 to 4 to her under Ex.B1.

17. The first and foremost contention of learned counsel for the

plaintiff-appellant is that Ex.B1 is undated. There is no provision

which demands a date or states that the court must rule a Will

Deed invalid in the absence of date. However, a date of a Will Deed

is an extremely important piece of information as with reference to

the date the Court can decide the validity of the Will Deed. The

date is a reference point of a Will. It is a tool that helps the court

decides whether a tool is valid or not. There are everyday practical

scenarios where the date plays an important part. For example, in

regards to a person suffering from dementia who wishes to divide

his property among his legal heirs, a date on the Will and the court

to determine whether he wrote the will when he was of proper

mental capacity or when he started to suffer from such a disease.

The date also validates other documents and witnesses that the

party brings towards the desk to prove the validity of the Will Deed.

It assures the Court that the documents brought are not

documents issued after the Will is registered. It is also common

practice for individuals to issue multiple Wills. With each Will, not

only the amount of property but the legal heirs vary. If the date is

not present on the Will Deed, it will be difficult for the courts to

decide as to which is the most recent Will Deed. If the court 11 MB,J & MGP,J

suspects the Will Deed has not been drafted and registered under

proper process, the absence of a date will just aid their

suspicions. It is essential to note here that the court did not have

any reason to believe the Will Deed was suspicious as the plaintiff

herself admitted about the existence of Will Deed and thereby the

absence of date will not play any crucial role in invalidating the

said document in all the cases. Thus, a Will Deed cannot be

declared invalid merely due to the absence of a date.

18. In the present case, there are no instances as stated in the

above paragraph giving preference to the date, which can decide

the validity of the Will Deed, more particularly, when the plaintiff-

PW1 admitted about the existence of Will Deed under Ex.B1 and

also about the partition of suit schedule property among her four

brothers in four units.

19. It is the specific contention of learned counsel for the plaintiff

that first three pages of Will Deed-Ex.B1 were forged and fabricated

and there was no signature of testator i.e., the father of plaintiff

and defendants of the suit and it was concocted only to deny the

share of the plaintiff in the suit schedule property. It is further

contended that the contents of the Will Deed - Ex.B1 itself speaks

that it is forged and fabricated, since it does not contain all names

of family members in order to defeat the rights of the plaintiff over

the suit schedule property.

12 MB,J & MGP,J

20. It is further case of the plaintiff that her father used to sign

in Telugu but the Will Deed contains the thumb impression that

too on the last page instead of each and every page. The

defendants got examined DW2, who deposed that Jaligama Balaiah

was suffering from Parkinson and was not in a position to sign and

therefore, affixed his thumb impression on the last page. At this

stage, it is appropriate to note the admission made by PW1 in her

cross examination that her father was suffering from Parkinson.

Thus, the evidence of DW2 is corroborated with the evidence of

PW1 with regard to Jaligama Balaiah suffering from Parkinson.

When it is the specific case of the plaintiff that first three pages of

the Ex.B1 were forged and fabricated, it is deemed that the fourth

and final page of Ex.B1 is in proper perspective, wherein the

thumb impression of testator was affixed. Thus, the question of

suspecting the thumb impression of testator on Ex.B1 does not

arise.

21. In the cross examination, PW1 further admitted that the

present Will (Ex.B1) is intact as it is earlier and as well as today.

When the partition has already taken place among the brothers of

the plaintiff 20 years ago, the plaintiff ought to have questioned the

same immediately after the alleged partition. The plaintiff has

slept over the matter for all these years and at a belated stage she 13 MB,J & MGP,J

has approached the Court that she is entitled for a share in the

suit schedule property.

22. In Raj Kumari and others v. Surinder Pal Sharma 2 the

Honourable Supreme Court observed that the presence of

suspicious circumstances makes the initial onus heavier and

therefore, in cases where the circumstances attendant upon the

execution of the Will excise the suspicion of the court, the

propounder must remove all legitimate suspicions before the

document can be accepted as the last will of the testator.

23. Learned counsel for the plaintiff/appellant relied upon a

decision in Shiva Kumar and others v. Sharanabasappa and others 3

wherein the Honourable Supreme Court observed as under:

"18. As noticed, even when a fishing enquiry with digging of the faults and lacuna is not to be resorted to while examining a Will but, and at the same time, the real and valid suspicions which arise because of anything standing beyond normal happening or conduct cannot be ignored either. Ignoring or brushing aside all the features noticed in relation to the document in question would require taking up an individual feature and ignoring it as being trivial or minor and then, proceeding with the belief that it had only been a matter of chance that all the abnormalities somehow chose to conglomerate into this one document. Such an approach would, obviously, be detached from realities and cannot be adopted. It needs hardly any emphasis that examination of a document propounded as Will has to be on the norms of reality as also normalcy; and the overall effect of all the features and circumstances is required to be examined."

24. Learned counsel for the plaintiff submitted that since the

defendants did not plead in the written statement that the plaintiff

is aware of Ex.B1 Will Deed and that she was informed earlier

2 (2021) 14 Supreme Court Cases 500 3 (2021) 11 SCC 277 14 MB,J & MGP,J

about the Will, they cannot rely upon the stray sentences of PW1 in

the cross examination. It is further submitted that settled

principles of law is that in the absence of pleadings, any amount of

evidence cannot be looked into. In this regard learned counsel for

the plaintiff relied upon decisions of the Honourable Supreme

Court in Srinivas Raghavendra Rao Desai v. V. Kumar Vamanrao 4,

Bondar Singh and others v. Nihal Singh 5, Mukand Limited v.

Mukand Staff 6 and Smt. Parameshwari Bai v. Muthojirao Scindia 7.

In this regard to it is pertinent to note that the plaintiff herself

categorically and straight away admitted about the existence of

Exs.B1 and B2 and no stray suggestions were put to the witness

anticipating stray sentences from the witness. It is true no doubt

that the evidence which was not a part of the pleadings couldn't be

led in the trial. No party could succeed a case by adducing

evidence without support of pleadings, since the law is well-settled

that one could be permitted to let in evidence only in tune with the

pleadings. The reason behind this principle is that if some

evidence has been produced which is not in conformation with the

written statement or plaint, it may disturb the position of the whole

case. In order to have a fair trial it is imperative that the party

should state the essential material facts so that other party may

not be taken by surprise. But in the instant case in reply the

4 2024 (2) ALD 182 SC 5 AIR 2003 SC 1905 6 AIR 2004 SC 3905 7 AIR 1981 KAR 40 15 MB,J & MGP,J

plaint averments, the defendants have filed their written statement,

wherein they have categorically stated about Exs.B1 and B2 and

also enclosed the documents along with the written statements. It

is not the case of the plaintiff that she was surprised by the

defendants by suddenly introducing Exs.B1 and B2. The plaintiff

has knowledge about execution of Exs.B1 and B2 prior to filing of

the suit and she has straight away admitted in her cross

examination. In such circumstances, the question of stray

answers from PW1 does not arise. Moreover, the defendants in

support of their contentions are relying upon Exs.B1 and B2 and

the Trial Court has also framed a separate issue in connection with

Ex.B1. Thus, the defendants are at liberty to put suggestions to

PW1 in connection with Exs.B1 and B2 to elicit necessary

information to support their contentions.

25. Learned counsel for the plaintiff relied upon a decision of the

Honourable Supreme Court in Mohammad Baqar and others v.

Naiumunnisa Bibi and others 8, wherein it was observed that the

parties to the action are co-sharers, and as under the law,

possession of one co-sharer is possession of all co-sharers it

cannot be adverse to them, unless there is a denial of their right to

their knowledge by the person in possession, and exclusion and

ouster following thereon for the statutory period. Similar view was

8 AIR 1956 SC 548 16 MB,J & MGP,J

expressed by the Honourable Supreme Court in T.

Ramalingeshwara Rao v. N. Madhava Rao and others 9. In the

present case the plaintiff herself admitted about execution of

Exs.B1 and B2 and she did not even challenge these documents at

any point of time, much less in the present suit. In Exs.B1 and

B2 it was categorically denied any share in the suit schedule

property to the plaintiff. Despite having knowledge about these

documents, the plaintiff kept quiet for all these years. Thus, there

is a clear denial of right of the plaintiff in respect of suit schedule

property. As rightly submitted by learned counsel for the

defendants, it is a recognized principle of jurisprudence that a right

not exercised for a long time is non-existent.

26. Learned counsel for the plaintiff relief upon a decision in

Somakka v. K.P. Basavaraj 10 wherein the Honourable Supreme

Court observed as under:

"Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non observance of these requirements lead to infirmity in the judgment."

9 AIR 2019 SC 1777 10 2022 (8) SCC 261 17 MB,J & MGP,J

27. In the present case, the trial Court has framed three issues,

which were relevant and appropriate and thereby the Trial Court

has answered those issues. There is absolutely no doubt that this

Court being first Appellate Court is bound to abide the provisions

of Order 41 Rule 31 of the Code of Civil Procedure in appreciating

the issues and the evidence produced before the Trial Court in

arriving to a proper conclusion.

28. It is the specific contention of the plaintiff that the defendant

Nos.1 to 4, who are the beneficiaries under Ex.B1, ought not to

have subscribed their signatures on Ex.B1. On the other hand,

learned counsel for the defendants while relying upon decision of

the Honourable Supreme Court in Jose v. Ouseph and others 11 and

M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri and Sons and

others 12 argued that legatees who had put their signatures on the

Will Deed in token of their consent to its execution were not

attesting witnesses and were not disqualified from taking as

legatees. It was further argued that it cannot be said that the

bequest is invalid due to the mere fact that the legatee had put his

signature in token of acceptance of his obligations under the Will.

It is the specific contention of the defendants that defendant Nos.1

to 4 did not sign the Will Deed as witnesses and in fact they were

asked by the testator to subscribe the signatures as a token of

11 2006 SCC Online Ker 254 12 (1969) 1 SCC 573 18 MB,J & MGP,J

acceptance of the Will in as much as they were not given equal

shares of the suit schedule property.

29. It is the contention of learned counsel for the plaintiff that

Ex.B1 cannot be relied upon as first three pages of Ex.B1 are

forged and fabricated. In reply, learned counsel for the defendants

relied upon a decision of the Apex Court in Meena Pradhan and

others v. Kamla Pradhan and another 13 wherein it was observed

that since the testator/ testatrix, at the time of

testing the document for its validity, would not be available for

deposing as to the circumstances in which the Will came to be

executed, stringent requisites for the proof thereof have been

statutorily enjoined to rule out the possibility of any manipulation.

In the said decision certain principles required for proving the

validity and execution of Will were elucidated. One who alleges

fraud, fabrication, undue influence etcetera has to prove the same.

However, even in the absence of such allegations, if there are

circumstances given rise to doubt, then it becomes the duty of the

propounder to dispel such suspicious circumstances by giving a

cogent and convincing explanation.

30. The test of judicial conscience has been evolved for dealing

with those cases where the execution of the Will is surrounded by

13 (2023) 9 Supreme Court Cases 734 19 MB,J & MGP,J

suspicious circumstances. Certain factors viz., awareness of the

testor as to the content as well as the consequences, nature and

effect of the testator as to the content as well as the consequences,

nature and effect of the dispositions in the Will, sound, certain and

disposing state of mind and memory of the testator at the time of

execution; testator executed the Will while acting on his own free

will. Suspicious circumstances must be 'real, germane and valid'

and not merely 'the fantasy of the doubting mind'. Whether a

particular feature would qualify as 'suspicious' would depend on

the fact and circumstances of each case.

31. In the present case, except contending that first three pages

of Will Deed were forged and fabricated, no material is placed

before either of the Court to substantiate said contention. Except

examining herself as PW1, no other independent witness was

examined on her behalf to establish the above said contention.

Ex.B1 Will Deed is consisting of four pages (two sheets). The

plaintiff failed to explain as to what extent the first three pages of

Ex.B1 were forged and fabricated. The contents of Will Deed were

duly typed on two sheets (front & back). The suit schedule

property was partitioned in four units among defendant Nos.1 to 4.

The name of defendant No.1 was shown first and then the name of

defendant No.2. In the third page there were two corrections i.e.,

the name of defendant No.4 was mentioned in the place of 20 MB,J & MGP,J

defendant No.3. Learned counsel for the defendants has rightly

submitted that the corrections made in the will are a mere

interchange of names of legatees of J. Ashok and J.Suresh.

Perhaps initially the name of defendant No.3 was shown but it was

struck down and name of defendant No.4 was mentioned and vice-

versa. If at all there is any objection in respect of these

corrections, it shall be from defendant Nos.3 and 4 but defendant

Nos.3 and 4 have not raised any objection in this regard. Thus,

these corrections need not be signed or attested. Except these two

corrections, there were no other corrections. Even for the sake of

arguments, if the above contention of the plaintiff is considered as

genuine and true, the allotment of property among defendant Nos.1

to 4 began in the second page of Ex.B1 and concluded in the third

page and there was no sufficient space left over in the third page to

mention the allotment of plaintiff to imagine that the alleged

allotment made in favour of plaintiff was deleted or altered. In

such circumstances, the scope of alleged forgery and fabrication of

first three pages of Ex.B1 does not arise, more particularly, when

the third page is printed on the backside of final and fourth page.

The probability of substituting the relevant pages is also

unimaginable as the contents of Ex.B1 were reduced to four pages

in two sheets i.e., front and back as stated supra.

21 MB,J & MGP,J

32. Though the testator has mentioned the names of plaintiff

and defendant Nos.1 to 4 in Ex.B1 as his successors, he has not

allotted any property to plaintiff on the ground that he gave his

daughter whatever he could at the time of her marriage. In this

regard, it is appropriate note the admission of plaintiff that her

marriage was performed in a grand style and was given gifts, gold

and cash. It is to be seen that the suit schedule property is not an

ancestral property and it is self acquired property of testator in

Ex.B1. Thus, the testator is at liberty to allot his self acquired

property as per his whims and fancies. The plaintiff, who is the

daughter of testator, cannot seek right in the suit schedule

property as a matter of right. If at all the suit schedule property is

an ancestral property, perhaps the total scenario would have been

different. The plaintiff could not examine any independent witness

to depose that the testator in Ex.B1 i.e., her father Jaligam Balaiah

has allotted a share to her out of his self acquired properties and

that the first three pages of Ex.B1 were forged and fabricated.

33. The other contentions of learned counsel for the plaintiff is

that Ex.B1 was typed in English and that it was mentioned as

'typed to my dictation' and whereas the testator does not know

English. In this regard, learned counsel for the defendants

submitted that though the testator is unfamiliar with the English

language, the contents were read out and explained by DW2 to the 22 MB,J & MGP,J

testator upon his request. It is the specific contention of the

plaintiff that DW2 is a childhood friend of his father and thus, his

evidence cannot be considered. In Smt. Indu Bala Bose and others

v. Manindra Chandra Bose and another 14 the Honourable Supreme

Court observed that nobody would normally invite a stranger or a

foe to be a scribe or a witness of a document executed by or in his

favour, normally, a known and reliable person, a friend or a

relation is called for the purpose.

34. In Ammu Balachandran v. Mrs. U.T. Joseph (died) and

others 15 the Honourable Supreme Court observed that law does not

say that every page should be signed. In paruck on The Indian

Succession Act, Eighth Edition, 1993, learned Author has

commented on that it is not necessary that all the pages should be

severally signed and one signature on the last sheet, made with the

intention of executing the Will is sufficient. Section 63 of the

Indian Succession Act only says that 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 Will. The signature or mark of the testator

can be either at the commencement or at the end, but it must be

so placed that it shall appear that it was intended to give effect to

the instruct as a Will. Learned counsel for the defendants relied

14 (1982) 1 Supreme Court Cases 20 15 1995 SCC Online Mad 201 23 MB,J & MGP,J

upon a decision of the High Court of Calcutta in Sm. Chinmoyee

Saha v. Debendra Lal Saha and others 16, wherein it was observed

that on the basis of observation in Sabitri v. F.A. Svi the Will

cannot be regard as not genuine, when nothing is there in Section

63 of the Succession Act to show that the signature of the testator

is to appear at the right hand corner of the Will. Similarly the

Succession Act does not prescribe that signature of the testator

shall be present on each and every page of the Will Deed. The only

thing that needs to consider a Will Deed as genuine is to remove

the suspicious circumstances. Though the plaintiff failed to bring

out as to what were the alleged instances of forgery and fabrication

in the first three pages of Ex.B1, the defendants have examined

DWs 1 to 3 and also Exs.B1 to B6 to remove all the suspicious

circumstances revolving around genuineness of Ex.B1, more

particularly, when the plaintiff herself admitted about the

execution of Ex.B1. Thus, failure to sign on some of the pages of

the Will Deed cannot by itself constitute suspicious circumstance.

35. Learned counsel for the defendants further relied upon a

decision of the Honourable Supreme Court in Chairman, State

Bank of India and another v. M.J. Jamesh 17 wherein it was

observed as under:

16 AIR 1985 Cal 349 17 (2022) 2 Supreme Court Cases 301 24 MB,J & MGP,J

"29. Before proceeding further, it is important to clarify distinction between 'acquiescence' and 'delay and laches'. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord.

He cannot afterwards complain. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance. However, acquiescence will not apply if lapse of time is of no importance or consequence."

36. In the present case despite having knowledge about

execution of Ex.B1 Will Deed she failed to challenge the same even

though no share was given to her in the suit schedule property,

which is one of the self acquired properties of her father. Further,

the plaintiff subscribed her signature in the subsequent document

under Ex.B2 development agreement in respect of suit schedule

property and in the said document, there was a categorical

mention that she was not given any share in the suit schedule

property. Despite having knowledge about execution of Exs.B1

and B2 contrary to her interests, the plaintiff failed to challenge

these documents and these acts of the plaintiff amounts to her

silent assent, tacit consent, concurrence, or acceptance of Exs.B1