THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.No.1391 of 1994 Date:21.12.2010 Between: Lotti Rajayya @ Naidu (died) Lotti Chandrasekharam and others. ….Appellants. And: Lotti Annapurnamma (died) Dugana Vemala Devi and others. …..Respondent. THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.No.1391 of 1994 JUDGMENT: This is an appeal filed under Section 96 C.P.C against the judgment and decree passed in O.S.No.32 of 1987 by the Subordinate Judge, Sompeta on 22.03.1994. The appellants herein are the defendants 1 to 4 therein. The respondents 1 to 9 are the plaintiffs 2 to 10 and the respondents 10 to 15 are the defendants 5 to 10. Originally, the suit was filed by the respondent No.1 Lotti Tulasida @ Domburu against the appellants 1 to 4. During the pendency of the said suit, respondent No.1 died and the defendants 5 to 8 are brought on records as Legal Representatives of the appellant No.1. According to the plaintiff, himself, defendants 1,5 and 6 are undivided sons of late Venkayya and members of the joint Hindu family. The defendants 1 and 3 are undivided sons and 4th defendant is the unmarried daughter of first defendant. The 7th defendant is the undivided son, the defendants 8 to 10 are unmarried undivided daughters of the 6th defendant. The plaint ‘A’ and ‘B’ Schedule properties are joint family properties from the inception, acquisition and treatment. The plaintiff and each of the branches of the defendants are entitled to each 1/4th share in the plaint ‘A’ and ‘B’ schedule properties. On 11.12.1934 late Venkayya died leaving his wife Lakshmidevi and his undivided sons the plaintiff, the defendants 1,5 and 6 and Jagannaikulu, the deceased sons who died unmarried in an undivided status in 1943. Items 1 to 10 in A schedule property is the ancestral joint family property and item 2 in ‘B’ schedule is the ancestral joint family house. Late Venkayya died leaving these ancestral joint family properties. Item-II in ‘A’ schedule is acquired subsequently with the aid of joint family income by the 1st defendant in his name. Item-I in ‘B’ schedule is joint family house constructed subsequently with the aid of joint family income. Before, the death of late Venkayya, the income of joint family property as meager and insufficient for the maintenance of the large family, the family incurred heavy debts. The plaintiff went to Burma in search of a job. After knowing his father’s death in 1934 he returned from Burma in 1936. In 1938, the plaintiff along with his maternal uncle late Kamaraju went to Tata and joined in Tata Iron and Steel company. On 06.09.1935 Lakshmidevi the mother of plaintiff fraudulently executed nominal and sham document in the name of her brother Byri Kamaraju in order to avoid debts and to save the properties from the creditors. Inspite of the sale deed, the properties continued to be in the possession and enjoyment of the joint family. No consideration was passed and the title and possession remained with the joint family. Late Appalaswamy, the father of plaintiff’s mother and maternal uncle Kamaraju originally belonged to Gopalapuram in Orissa State. Malakshmi, the plaintiff’s mother’s mother belonged to Ichapuram. Late Appalaswamy worked as Clerk in Shipyard in Gopalapuram. After the death of Appalaswamy, Malakshmi returned to her parents house in Ichapuram. Kamaraju, after the death of his father went to Burma in search of job. Finally, after his return from Burma in 1932 he settled in Tata Iron and steel company. He never looked after agricultural lands. In order to save the properties from creditors, the mother of plaintiff executed nominal and sham documents on 6.9.1935. When the danger from the creditors was averted the said Kamaraju returned the nominal and sham title in the property in the form of settlement deed dated 9.6.1947 in favour of plaintiff’s mother. Neither the sale deed in favour of maternal uncle Kamaraju nor the settlement deed in favour of the plaintiff’s mother are genuine documents intended to be written what they contained. The purpose of these documents was to evade and avoid family debts and to save properties from the creditors. The mother of plaintiff had no right title or interest to execute the sale deed dated 6.9.1935. The said sale deed never conveyed any right title or interest in the property. Therefore, the settlement deed dated 9.6.1947 will never convey any right, title or interest in the property. Lakshmi Devi the mother of plaintiff died intestate on 8.3.1956. The claim of the first defendant in his caveat petition that their mother executed will in his favour for the alleged services rendered by him is false. The said will is fabricated and forged and intended to deprive the plaintiff and other brothers their legitimate share in the ancestral joint family properties. The mother of the plaintiff has no right to execute the will. Therefore, the alleged will even if true is not binding on the plaintiff and that the will not change the nature of plaintiff’s ancestral land into one of exclusive land of 1st defendant. The 1st defendant managed the plaint schedule land and constructed subsequently house in Item-I ‘B’ schedule with the aid of joint family income while the plaintiff and the other defendants worked in Tata Steel company. The plaintiff retired from service and wanted to settle in Byredlaputtuga village. The plaintiff demanded partition of joint family lands and houses and the 1st defendant refused for the same. Hence the suit for partition. The defendants 1 to 4 have filed a written statement denying the material averments made in the plant. According to them Items 1,2,3,6 and 8 of the plaint-‘A’ schedule and Item No.2 of the plaint ‘B’ schedule were the ancestral properties of Lotti Venkayya and his sons. Lotti Venkayya died in 1934 heavily indebted when his children were very young. As the creditors were pressing for payment of the debts, Laxmidevi widow of Venkayya executed a sale deed on her own behalf and on behalf of her minor sons as guardian in respect of the said properties on 6.9.1935 for Rs.400/- in favour of Byri Kamaraju who paid the consideration and came into possession and the debts were discharged by Laxmidevi. The plaintiff, D-5 and D-6 were earning their livelihood in Jamshedpur and they were not looking after their mother. Therefore, on 9.6.1947 Byri Kamaraju out of love and affection towards his sister and with an intention to provide her with the properties for her livelihood conveyed the above said plaint ‘A’ and ‘B’ schedule by a settlement deed dated 9.6.1947 in favour of Laxmidevi. The gift was accepted by the donee and she was in possession thereof in her own right by paying land revenue to the Government. Laxmi Devi was attacked with paralysis and was looked after by her son the 1st defendant. The plaintiff, D-5 and D-6 have discarded their mother Laxmi Devi and neglected to maintain her. Therefore, Laxmi Devi executed a will dated 5.5.1954 in sound disposing state of mind bequeathing all the properties which she got under the settlement deed dated 9.4.1947 to D.1 Laxmi Devi and she died in the year 1956 and therefore, the properties devolved on the first defendant are in his possession as of his own right as absolute owner. The 1st defendant purchased Items 5 and 11 of plaint ‘A’ schedule under two separate registered sale deeds dated 3.7.1955 and 21.5.1956 respectively and also Item No.1 of ‘B’ schedule under a sale deed dated 12.11.1956. D.1 subsequently sold away Ac.0.03 cents of land covered by the sale deed dated 3.11.1905 and the remaining Ac.0.04 cents is the Item No.5 of plaint ‘A’ schedule. Therefore, Items-5 and 11 of plaint ‘A’ schedule and Item No.1 of ‘B’ schedule are the self acquired properties of the first defendant and the sale price of those properties was not the nucleus of other properties as income from the other properties was insufficient to meet the expenses of the family. The 1st defendant constructed a house on Item No.1 of ‘B’ schedule with his own money. Item No.7 of the plaint ‘A’ schedule was purchased by Lotti Laxmamma the wife of the defendant No.1 on 25.1.1958 for Rs.200/- with her own money and she is in possession thereof in her own right. D-1 and his sons are in exclusive possession and enjoyment of Items 1,3, 5 to 8 and all of plaint schedule and Item No.1 and 2 of plaint ‘B’ schedule and they have perfected their title to the said properties by adverse possession. D-1 to D-4 have nothing to do with the Items 4,9 and 10 of plaint ‘A’ schedule. As D-1 to D-4 are exclusive possession of the above said properties, the plaintiffs are not entitled to any reliefs. The defendant No.5 filed written statement in support of the plaint averments. Defendant No.6 remained ex parte. A Court Guardian appointed by the court for minor defendants 8 to 10 filed a written statement, but he did not challenge the plaint averments. Basing on the pleadings, the lower court framed the following issues: 1. Whether the sale deed dated 6.9.1935 executed by late Laxmidevi the mother of the plaintiff, D-1, D-5 and D-6 in favour of Byri Kamaraju in Sham Nominal, without consideration and executed only to defraud without consideration and executed only to defraud the creditors and that even after the sale deed dated 6.9.1935 the properties covered by the document were still in possession of the joint family of the plaintiff D-1, D-5 and D-6 and their mother? 2. Whether the registered settlement deed dated 9.6.1947 executed by Byri Kamaraju in favour of Laxmi Devi the mother of the plaintiff D-1, D-5 and D-6 is a genuine gift or nominal and sham by way of re-conveyance of the properties which were conveyed nominally in his name by the mother of the plaintiff D-1, D-5 and D-6 by document dated 6.9.1935? 3. Whether the will deed dated 5.5.1954 alleged to have been executed by the mother of the plaintiff D-1, D-5 and D-6 in favour of D-1 is true, valid and binding on the plaintiff and D-5 and D-6? 4. Whether the Items 5 and 11 of plaint ‘A’ schedule and Item No.1 of plaint ‘B’ schedule are the self acquired properties of the 1st defendant? 5. Whether the Item No.7 of the plaint ‘A’ schedule is the exclusive property of Lotti Laxmamma the wife of the defendant No.1 6. Whether the D-1 to D-4 have perfected title to the plaint ‘A’ and ‘B’ schedule properties by adverse possession? 7. Whether the plaintiff and the defendants are not in Joint possession of the properties and the court fee paid is correct? 8. What are the properties available for partition? 9. To what reliefs? On behalf of the plaintiff, P.Ws.1 to 6 were examined and Exs.A-1 to A-3 were marked. D.Ws.5 and 6 who are sailing with the plaintiff have examined themselves as D.Ws.1 and 2. D.Ws.3 to 9 were examined on behalf of the contesting D-1 to D-4 and Exs.B-1 to B-4 were marked on their behalf. Lower court after taking into consideration of the said oral and documentary evidence held the issues 1 and 2 against the plaintiff and issue No.3 against the 1st defendant and in favour of the plaintiff and defendants 5 and 6 and issue No.4 in favour of the 1st defendant and issue No.5 in favour of 1st defendant and against the plaintiff, defendants 5 and 6 and issue Nos.6 and 7 against the defendants 1 to 4 and thereby decreed the suit with costs for 1/4th share in respect of items 1,2,3,4, 6,8,9 and 10 of plaint ‘A’ schedule and Item No.2 of plaint ‘B’ schedule. Aggrieved by the said judgment and decree, the defendants 1 to 4 therein filed the present appeal questioning the findings given by the lower court in Issue No.3. Thus, the point that arises for consideration is whether the will dated 5.5.194 said to have been executed by the mother of the plaintiff, D-5 and D-6 in favour of D-1 is true, valid and binding on the plaintiff and defendants 5 and 6. According to the appellant, Item Nos.1, 2,3,6 and 8 of the plaint ‘A’ schedule and Item No.2 of plaint ‘B’ schedule were the ancestral properties of Lotti Venkayya and his sons and Lotti Venkayya died in the year 1934 by incurring heavy debts and his wife in order to save the property from creditors has executed a sale deed on her behalf and on behalf of her minor sons as guardian in respect of the said properties, on 6.9.1935 for Rs.400/- in favour of Byri Kamaraju who paid the consideration and came into possession and the debts were discharged by Laxmidevi. Thereafter on 9.6.1947 Byri Kamaraju out of love and affection towards his sister and with an intention to provide her with the properties for her livelihood conveyed the above said property by way of settlement deed dated 9.6.1947 in favour of Laxmidevi and from then onwards she is in possession and enjoyment of the said property and therefore she has executed a will dated 5.5.1954 in favour of the defendant No.1 as he is only looking after her and the said Lakshmidevi died in the year 1956 and thereafter the properties have devolved upon the 1st defendant under the said will and he is in possession and enjoyment of the said property. The contention of the 1st respondent who is the plaintiff in the suit is that the said sale deed executed by the Laxmidevi in favour of Byri Kamaraju on 6.9.1938 and the settlement deed dated 9.6.1947 executed by Byri Kamaraju in fvour of the Laxmidevi are only sham and nominal documents and the said Laxmidevi has no right to alienate the joint family property without the consent of 1st defendant who is the major son at that time and as the said documents sham and nominal documents, the said properties continuous to be the joint family property and as such the said Laxmidevi has no manner of right whatsoever to execute a will deed in favour of the first defendant and the said will deed executed by the Laxmidevi is not binding on the plaintiff, defendants 5 and 6 who are the co-owners of the said joint family. He has further pleaded that the said will deed was brought into existence by the first defendant only to deprive the share of the plaintiff, D-5 and D-6 in the schedule properties of joint family. The above contentions of the plaintiffs with regard to the validity of the sale deed dated 6.9.1935 and gift settlement deed dated 9.6.9147 was already decided by the lower court in issues No.1 and 2 agaisnt the plaintiff and D-5 and D-6, but they did not challenge the same by filing any appeal. As such the said finding became final. Thus, the sale deed dated 6.5.1935 and the settlement deed dated 9.6.1947 are true and valid documents. Now the only point that arises for consideration whether the will deed dated 5.5.1954 said to have been executed by the mother of the plaintiff, D-5 and D-6 in favour of the first defendant is true, valid and binding on the plaintiff, D-5 and D-6. Since the plaintiff, D-5 and D-6 are disputing the execution of the said will deed, the burden is on the 1st defendant to establish the same. In order to establish the execution of the will deed which is marked as Ex.B-2, the defendant No.1 was examined himself as D.W-3 and examined one of the attestors of the said will as D.W.4 and the son of the scribe of the said will as D.W.6. The first defendant in his Chief-Examination has stated that his brothers have been living in Tata Nagar since their childhood and his mother resided at Byredlaputtuga with him till her death. The brothers of his mother did not help his mother in any way. His mother was lying in bed due to paralysis for three years prior to her death. Himself alone got treatment to his mother. His mother executed a will deed in his favour in respect of the lands held by her. She executed the will deed at Ichapuram in the house of her parents. At that time his mother was in disposing state of mind and she was getting treatment in Government Hospital, Inchapuram. His maternal uncle Kamaraju got the will deed drafted. Kamaraju, Chalamaiah, Teppala Vallabarao, Peddinti Rajayya have attested the will deed. Kamaraju and Chalamaiah have expired, Peddinti Rajaiah is alive but suffering from heart troubles. His mother affixed her thumb impression on will deed after the contents of the will deed were explained to her. Attestors were present at the time of the execution and attested and his brothers were aware of the will deed executed by his mother. Ex.B-2 is the will deed executed by his mother. In the cross-examination he has stated that his mother lived with him till her death from the beginning at Byredalaputtuga and he asked his mother to execute will deed two years prior to her death. Since one year prior to Ex.B-2 he asked his mother to execute the will deed, but she did not execute the will deed since she was under the impression that she will survivor for more time. His mother was not in a position to walk at the time of execution of Ex.B-2 and she was suffering from Paralysis of left hand and left leg. He took his mother to Ichapuram on the early hours of the day of Ex.B-2 in his cart to the house of Kamaraju and they reached the house of Kamaraju at 9.00 a.m. Attestor Chalaimah is from Ichapuram and related to Kamaraju. Teppala Vallabarao is resident of Kapasikuddi which is at a distance of three hours walk from Ichapuram. Peddenti Rajaiah is from Nelavanka village. The scribe is from Ichapuram. He called Peddineti Rajaiah and Vallabharao. He does not know as to how they came there. There is Sub Registrar’s office at Ichapuram. The scribe is a document writer. The thumb impression of his mother was obtained with the help of Ink pen as stamp pad was not available. He asked for stamp pad but he was told that the purpose would be served with the ink pen. He did not call for the presence of his brothers at the time of the execution of the will deed. D-6 was present at Byredla Puttuga at the time of the death of his mother. He was present at the time of the execution of Ex.B-2. His signature was not obtained on Ex.B-2 and he told him about Ex.B-2 after the execution of the Ex.B-2. He showed Ex.B-2 to the villagers. D-6 was unmarried at that time. D-6 was doing agriculture by that time with him. D-5 married the daughter of Kamaraju. D-6 also married the daughter of Kamaraju. His mother did not execute registered will deed for want of money. D-4 is the attestor of the said will deed in his Chief-examination has stated that the will deed executed at the house of Byri Kamaraju at Ichapuram. Byri Kamaraju was the brother of the mother of D.1. He was requested by D-1 to come to the house of Kamaraju when he was at Taluk Office, to act as attestor of the will deed. The will deed was drafted when he went there. It was already drafted when he went to there. The mother of D-1 was present there. She affixed her thumb impression on the will deed in his presence. He attested Ex.B-2 will deed which bears his signature as attestors. Chalamaiah and Kamaraju attested the will deed. The contents of Ex.B-2 were explained to the mother of D-1. The mother of D-1 agreed for the contents of Ex.B-2. The mother of D.1 was conscious and in disposable state of mind at that time. In cross-examination, he has stated that by the time he went to the house of Kamaraju, the signatures were already put. Lotti Jagannaikulu and Burra Desai belonged to his village. The defendant No.1 is his close friend. He questioned the mother of D-1 as to why she was excluding her other sons but she told that the D-1 alone was looking after her. The defendant No.1 cultivated Ac.2.00 of land belong to Bandu Balaraju of their village on lease. He cultivated the land of Ayyori Polam on lease. In his village the defendant No.1 cultivated the land of Bandu Balaji only. D.W.6 is the son of the scribe of the will Ex.B-2 has stated that he is Licensed Document Writer. Late Kanagarla Venkata Ramana was his father. His father used to write documents. He can identify the hand writing of his father. Ex.B-2 is in the hand writing of his father. In the cross-examination, he has stated that the hand writing on Ex.B-2 and the thumb impression of the executant are in different ink. The document was written with black ink but where as the thumb impression was put with blue ink. The figure five mentioned as list of witnesses in Ex.B-2 is not in the hand writing of his father. For affixing the thumb impression of the executant, stamp pad was used. He denies the thumb impression on Ex.B-2 is not the thumb impression at all and it is only a blot of ink. Basing on the above said evidence, the lower court has observed that the execution of the will deed is not voluntary as the legatee has taken part in the execution of the will deed. The 1st defendant has taken his mother for execution of the will deed and he called the attestors and the scribe. It is further observed that the purported thumb impression of late Laxmi Devi on Ex.B-2 is not clear and it appears that the purpoted thumb impression is not a thumb impression but a blot of ink. No ridges are visible in the purported thumb impression of late Laxmi Devi. D-1 as D.W.3 deposed that because, the stamp paid was not available the ink pen was used for affixing the thumb impression of late Laxmidevi in Ex.B.2. D.W.3 has deposed the same pen used by the scribe was used for affixing the thumb impression of his mother but the thumb impression is in different ink. Thus, the lower court with the above observations found that the execution of the will deed is doubtful and it cannot be acted upon as it is lacking voluntaryness on the part of the testator and the active part taken by the profounder in the execution of the will deed. Now the appellant’s counsel has pleaded that the observations and findings of the lower court are perverse and the mere participation of a legatee in the execution of the will deed cannot be termed as a suspicious circumstances for the execution of the will deed and in support of his contentions, he relied upon a decision rendered in P. Rameswara Rao v. I. Sanjeeva Rao[1] wherein the Division Bench of this Court has observed that: “Since the defendant propounded Ex.B-36 will, the burden is on him to establish its truth, validity and genuineness. It is pertinent to note that the fact that Venkamma was living with defendant and his family members from decades prior to her death is neither denied nor disputed by the plaintiff. It is not even the case of the plaintiff that there is any love last between him and Venkamma for her to think of him at the time of execution of a Will by her. A person would normally think of bequeathing his/her property to the persons who are near and dear to him/her, and who are looking after him/her comforts in his/her old age. When it is the defendant and his family members that were looking after the comforts of Venkamma, it is but natural for Venkamma to make them the beneficiaries of the properties belonging to her. So, there is nothing unnatural in