THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2936 of 1992 JUDGMENT: The defendant No.2 in O.S.No.21 of 1983 on the file of the Principal Subordinate Judge, Tenali is the appellant herein. The suit was one filed for partition of the plaint schedule property into four equal shares. The allegations in the plaint goes to show that the plaintiffs 1 and 2, 1st defendant and late Laxmikanthamma, who is the mother of the defendants 2 and 3, are the daughters of Bonthu Subbareddy and Subbamma. Subbareddy predeceased his wife and his wife Subbamma succeeded to the schedule properties and acquired absolute rights and died on 15.12.1982 intestate. The plaintiffs, defendants 2 and 3, and 1st defendant are entitled for 1/4th share. An amount of Rs.12,000/-, which was shown in B and C schedule of properties, kept with 4th defendant and though the defendants promised to partition the properties, they did not do so. Hence, the suit for partition. The defendant filed a written statement that prior to her death on 13.12.1982 in a sound and disposing state of mind, she executed a will whereunder she conveyed her properties to the plaintiffs 1 and 2, and defendants 1 and 2, and to one Bommu Sambireddy, who is the son of the 1st defendant and one Bonthu Venkatareddy, the will has come into effect. The plaintiffs also accepted the same at the time of obsequies. The C-schedule property was never existed and the said amount was gifted to Sambireddy, who is the son of the 1st defendant. Therefore, as per the will the properties have to be divided and the defendants have no objection. The 3rd defendant filed a written statement supporting the claim of the plaintiffs. The 4th defendant filed a written statement claiming that Subbamma was keeping some money with him and he was having about Rs.13,000/- belonging to her and another pronote in her favour for Rs.1,000/- executed by one G.Basavamma and after meeting the funeral expenses a sum of Rs.10,800/- was lying and a sum of Rs.10,000/- is available after further expenses. It was agreed by all of them that the said pronote debt and amount shall be given to the son of the 1st defendant. Accordingly, on 04.01.1983, the 4th defendant executed a promissory note for Rs.10,000/- in favour of Sambireddy, the son of the 4th defendant and also handed over the other promissory notes for Rs.1,000/-. Therefore, the defendant is not a necessary party to the suit. On the basis of the above pleadings, the necessary issues have been framed for trial. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and no documents were marked and on behalf of the defendants, D.Ws.1 to 8 were examined and marked Exs.B-1 to 20. Exs.X-1 to X-3 were also marked. After considering the evidence on record, the learned Principal Subordinate Judge, Tenali did not accept the Will set up by the plaintiffs and decreed partition of plaint A and B schedule of properties and dismissed the suit as far as it relates to the plaint C schedule of property. Profits were also granted. Aggrieved by the said judgment and decree dated 20.07.1992, the 2nd defendant preferred this appeal. After filing of the appeal the 2nd plaintiff died and the respondents 5 and 6 came on record as legal representatives claiming that the husband of the 2nd plaintiff by name Veera Reddy executed a registered will on 02.12.1985 in their favour and the properties succeeded from his wife Tulasamma are also conveyed to respondents 5 and 6 and, therefore, they are entitled for the share of the properties. The points that arise for consideration are: 1. Whether the Will dated 13.12.1982 set up by the defendants 1 and 2 is true and valid? 2. Whether the respondents 5 and 6 are entitled to succeed to the share of the 2nd plaintiff? POINTS: There is no dispute about the relationship between the parties and also the fact that the properties belonged to Subbamma and after her death as intestate the properties are succeeded by her daughters. The defendants 1 and 2 claims that on 13.12.1982, two days prior to the death, the deceased has executed an unregistered Will, which is Ex.B-1 giving the properties to all the legal heirs and also to P.W.2, who performed the obsequies and consequently the partition of the property shall be effected as per the Will Ex.B-1. The dispossession under the Will is as follows: Legatee Village D.No. Full extent Extent 1st plaintiff Kollipara 956/3 Ac.0-75 cts. Ac.0-11 cts. 957/1 0-32 0-16 78/3 0-68 0-68 0-95 Boundaries are given for sub-items 1 and 2 2nd plaintiff Kollipara 756/10 0-60 792 0-12 0-72 0-46 Out of it 46 cents 721/1A out of 2-38 0-16 736/5A out of 0-41 0-11 0-73 1st defendant Kollipara 79/2 out of 2-29 0-65 Sambireddy son of 1st defendant Kollipara 97-A/A1 0-77 0-77 718/B2 out of 0-95 0-12 ½ 736/5A out of 0-41 0-30 736/10 out of 0-18 0-04 ½ 1-24 Kollipara tiled house 14th Block 0-05 2nd defendant Kollipara 721/1A out of 2-38 0-44 721/2A out of 2-38 0-60 718B/2B out of 0-95 0-12 ½ 736/10 out of 0-18 0-04 ½ Bommuvanipalem 79/1 0-47 0-47 1-68 Bondu Venkatareddy (P.W.2) Kollipara 956/B out of 0-75 0-08 0-08 The lower Court did not accept the Will and found that it is not proved. There is no doubt about the fact that the person, who succeeds the Will, has to prove the same and the suspicious circumstances have to be removed. Evidently, the evidence on record goes to show that the deceased was aged about 80 years by the date of her death and two days prior to her death she is said to have executed the Will. The contention of the plaintiff before the lower Court and which is depicted before this Court is that the properties which were under Ex.B-1 are not properly distributed and the shares are not equal and the 3rd defendant was not given any share. In order to prove the Will the defendants have examined D.Ws.1 to 4 and the 2nd defendant, who is D.W.1, claims that on 12.12.1982 his grandmother asked him to bring D.W.4 to draft the Will and D.W.4 came and on the next day again D.W.4 came and he brought the attestors D.Ws.2 and 3. The evidence of the witnesses shows that the scribe drafted the Will by looking into the draft and it was read over and accepted by Subbamma. D.W.4 claims that he brought all the particulars from the Assistant Karanam and after giving the said information Subbamma has given the particulars of the disposition. His evidence shows that he did not prepare any draft without the instructions from Subbamma. If really, the property particulars are to be required, they could have been included by D.W.1 or other family members from the Village Karanam and the Karanam should have been called as a witness but instead D.W.4 was called and he claims to have brought the particulars of the property. This is an unnatural way of conduct of the deceased. Further, it is to be noted that P.W.2 is said to have performed the obsequies of late Subbamma and he is also a beneficiary under the Will but he says that Subbamma did not execute the Will. It is an admitted fact that Subbamma has got lot of confidence on P.W.2 and she kept her money with him and also promissory note with him and if really in a voluntary state of mind and voluntarily wanted to execute a Will, the first person to be called or to be associated with the Will is P.W.2 and the house of P.W.2 is not far away from the house of the deceased. There is absolutely no reason as to why he was not called and as to why he was not informed about the intention of the deceased to execute the Will. This is a strong circumstance against the defendants, which was rightly taken into consideration by the lower Court and there is absolutely no explanation on the side of the defendants on this aspect. Furthermore, the Will was said to have been executed just two days prior to the death of the deceased and it is pleaded by the defendants that after obsequies, all the parties have agreed for the disposition. If that be so, there is no reason as to why an understanding was not reduced into writing between the parties on the basis of the Will. If really, Subbamma intended to execute a Will she need not wait till the last day of her death and she could have as well executed the Will long prior to her death. There is also no explanation on behalf of the defendants for the deceased to execute the Will two days before her death when she survived for a longer period. In fact by the time D.W.2, one of the attestors, gave evidence, he was said to be aged about 32 years by 1988 and by the date of the Will, he would be hardly aged about 25 years and is also not a close relation of the parties. His evidence clearly goes to show that he waited at the house for 20 minutes and in his presence Subbamma did not give any instructions to the scribe and the scribe drafted the Will by looking into the earlier draft and he does not know when the draft was prepared. He also even did not attend the funerals or the obsequies of the deceased. The manner in which the transaction is said to have been conducted in his presence is highly suspicious. Even the evidence of D.W.3, the other scribe, shows that he does not know what is meant by rough draft and he does not know what she told previously in the night and nothing was told before him by Subbamma. According to him, there is also said to be a Registrar office in the village and nobody thought of registering the Will. The evidence of D.W.5 about identifying the finger prints of the deceased on the Will, even if accepted as true is by itself not sufficient to hold that the Will is a voluntary testament given by the deceased. Therefore, from the above evidence on record, it is quite clear that the manner in which the Will was said to have been executed and the manner in which the contents were brought to, does not appear to be the free Will of the deceased. The learned counsel for the appellants relied on the following decisions: 1. Jaswant Kaur v. Amrit Kaur[1] 2. Pinnaka Hanumantha Rao (died) per L.R. v. Garlapati Dhanalakshmi[2] The above decisions have no application to the facts of this case since unnaturality and the genuineness of the execution of the Will is in serious doubt and the lower Court has rightly rejected the evidence. Even if D.W.1 association with the Will may not be a suspicious circumstance but the evidence of the attestor and the scribe throws any amount of doubt and the time of execution of the Will is also highly doubtful. There is also no material to hold that after the death, the plaintiffs or 3rd defendant have accepted the Will as pleaded by the defendants. Therefore, in view of the above circumstances, I have no hesitation in holding that Ex.B-1 Will is not proved to be genuine and the lower Court has rightly rejected the same. So far as the other question as to the succession to the share of the 2nd plaintiff is concerned, it is not in dispute that she died issueless. The respondents 5 and 6 claim that the husband of Tulasamma has executed a Will and that includes the properties in the suit and, therefore, they are entitled to the share of 2nd plaintiff. This contention of respondents 5 and 6 cannot be accepted. The learned counsel for the plaintiffs contends that when there are no children, the husband does not succeed to the property and it goes to the heirs of the father. In this connection, it is useful to refer to Section 15 of the Hindu Succession Act, 1956 (for short “the Act”), which is as under: 15. General rules of succession in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. There is no doubt about the fact that under Section 15(2)(a) of the Act, in the absence of son or daughter, the property inherited by a female from her father or mother shall devolve on the heirs of the father and not her husband. Therefore, there could not have been any valid disposition by the husband of the 2nd plaintiff in favour of the respondents 5 and 6 herein and the share of the 2nd plaintiff shall be divided into three shares and plaintiffs 1 and 2 and 1st defendant will get one share each and the defendants 2 and 3 will get one share together. Therefore, with the above extents, the judgment and decree of the lower Court is modified and the Appeal Suit is disposed of. No costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 18-10-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2936 of 1992 DATE: 18-10-2011 MR [1] (1977) 1 Supreme Court Cases 369 [2] 2007 (2) ALD 435