IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THIS, THE FIRST DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR COMMON JUDGMENT IN S.A.585 & 686 OF 1999 SECOND APPEAL No.585 OF 1999 Between: P.S. Nagaraju. - - - Defendant No.1/ Appellant/ Appellant. AND R. Venkatesaiah and two others. - - - Plaintiff & D-2 & 3/ Respondents/ Respondents. SECOND APPEAL No.686 OF 1999 Between: P.S. Nagaraju. - - - Plaintiff/ Appellant/ Appellant. AND R. Venkatesaiah. - - - Defendant/ Respondent/ Respondent. The Court made the following: HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NOs. 585 OF 1999 & 686 OF 1999 COMMON JUDGMENT: These two appeals arise out of two cross suits.O.S.366 of 1980 filed by the appellant herein for declaration of title and consequential Permanent injunction restraining the Respondent from interfering with the possession of the appellant. Another suit OS.110 of 1983 was filed by the respondent herein seeking permanent injunction restraining appellants herein from interfering with his possession. Common judgment was rendered in both the suits whereby OS.366 of 1980 filed by the appellant was dismissed and OS.110 of 1983 filed by the respondent was decreed. The appellant preferred A.S.41 of 1988 against the decree in OS.110 of 1983 whereas A.S.42 of 1988 was preferred by the appellant against the dismissal of his Suit OS.366 of 1980. Since both the appeals are dismissed by the impugned common judgment of the lower appellate Court, Second Appeal 585 of 1999 is directed against the judgment and decree in O.S.110 of 1983 and A.S.41 of 1988. Similarly, Second Appeal 686 of 1999 is directed against the judgment and decree in O.S.366 of 1980 as confirmed in A.S.42 of 1988. 2. Heard both the learned counsel appearing for the parties. 3. For the sake of convenience appellant who is the plaintiff in O.S.366 of 1980 is referred as plaintiff and the respondent is referred as the defendant. 4. The main allegations of the plaintiff in OS.366 of 1980 are as follows : That the property in question belongs to Eranti Subbaiah and his wife Eranti Subbamma. They had no issues. While, Subbaiah died about ten years prior to the suit i.e. some time in 1970 survived by his widow Subbamma, it is alleged that the plaintiff’s mother was brought up by Subbaiah and Subbamma and was also got married by them, out of which, the plaintiff was born. The plaintiff’s mother however died at a very young age and as such plaintiff was brought up by Subbaiah and Subbamma. The plaintiff alleged that the Subbamma executed a registered gift deed dated 06-02-1980 marked as Ex.A-3 in favour of the plaintiff with reference to the suit schedule property and delivered possession to the plaintiff. Plaintiff therefore claims as absolute owner and possessor of the suit schedule property and alleged that the defendant was interfering in spite of knowledge of the registered gift deed. The present suit was filed by the plaintiff for declaration and consequential injunction after exchange of legal notices between the plaintiff and defendant. 5. The defendant resisted the suit by contending that he was the brother’s son of Subbamma. He claims that he was residing with Subbaiah and Subbamma. He denied that Subbaiah died intestate and claims that as the said couple has no children, they have brought up the father of the defendant as their own foster son, got him married to Laxmidevamma and that defendant’s father and mother were looking after the family affairs of the Subbaiah even during his life time and after him as well. It is claimed that Subbaiah died some time in 1957 and the defendant’s father continued to look after Subbamma and the properties of Subbaiah. The defendant also claimed that while late Subbaiah was in sound and disposing state of mind, he executed a will Ex.B-45 dated 12-07-1963 bequeathing all the suit schedule properties in favour of the defendant and the defendant was directed to look after his mother Laxmidevamma as well as Subbamma by maintaining them. Defendant therefore claims that he has been in possession and enjoyment of all the suit schedule properties and he had improved the properties, dug a well and installed oil engine and used to reside with Subbamma and Subbaiah along with his own parents. Defendant specifically denies that Subbamma executed any gift as alleged by contending that she has no competency to execute any gift deed as the defendant became owner of all the properties bequeathed by Subbaiah in his favour. 6. On these pleadings, plaintiff let in evidence of PWs. 1 to 4 and marked Exs.A-1 to A-11 apart from Exs.X-1 and X-3. The defendant got examined DWs.1 to 6 and marked Exs.B-1 to B-50 apart from Exs.C-1 to C-22 and MO.1, which was bunch of keys. The trial Court framed separate issues in both the suits and on consideration of the evidence, upheld the will relied upon byi the defendant Ex.B-45 and consequently rejected the Gift Deed Ex.A-3 relied upon by the plaintiff. 7. In the first appeals filed by the plaintiff, the appellate Court framed relevant points for consideration in each of those appeals and the crucial point which fell for consideration before the lower appellate Court and also in these appeals is : Whether the Ex.B-45 will dated 12-07-1963 allegedly executed by Subbaiah in favour of the defendant is true, valid and binding? 8. The appellate Court upheld findings of the trial Court on all the issues and held Ex.B-45 will as a valid document and dismissed the plaintiff’s suit and decreed the defendant’s suit. In these appeals both the learned counsel have rightly concentrated only on the issue as framed above and the substantial question of law on which these appeals were admitted is framed under question No.1 in ground No.7 of the grounds of appeal ; Whether the Courts below are right in relying upon Ex.B- 45 un-registered will, dated 12-07-1963 by decreeing the suit of the defendant in spite of the evidence of PW.4 handwriting expert, together with his report Ex.C-17 holding against the defendant? Learned counsel for the appellant has also argued another ancillary question as to whether the lower appellate Court was justified in rejecting application for additional evidence produced on behalf of the plaintiff? 9. Learned counsel for the appellant points out that while Ex.B- 45 was an un-registered document and signature of the testator Subbaiah on the said document was not established especially in view of the expert evidence giving opinion that the signature of Subbaiah appearing on the said will does not tally with his admitted signature. 10. Learned counsel for the appellant submits that dissimilarities in the admitted and disputed signatures of late Subbaiah were examined by the handwriting expert and his opinion which was called for during the trial is entitled to a sufficient weight but the Courts below have ignored the said opinion and upheld the will Ex.B-45 which is unsustainable. Learned counsel also points out the other suspicious circumstances that the will has been produced 13 years after its execution and that there is difference in the ink used in Ex.B-45 document visible to the naked eye. He also points out under the said will that Subbaiah has not bequeathed any property to his wife Subbamma and entire property has been bequeathed to the defendant. Learned counsel therefore submits that these material suspicious circumstances have not been explained by the propounder of the will and as such the truth and validity of Ex.B-45 was not properly appreciated by both the Courts below. 11. Learned counsel for the respondent on the contrary submits that the evidence on record shows that the defendant’s father was brought up by the old couple. While the defendant’s father was brother of Subbamma, plaintiff was not related to the said old couple. He also relies upon the voters list Ex.B-12 for the year 1977, B-21 for the year 1970, B-22 for the year 1975, B-23 for the year 1983, B-25 to B-29 five Enumeration cards to substantiate that the defendant along with parents was residing with late Subbaiah, looking after his properties even during his life time. He submits that the Ex.B-45 will was duly attested and was proved by examining the attestor DW-5 and scribe DW.6. He points out that the discrepancies pointed out in the ink in Ex.B-45 was explained by the scribe DW.6 himself and so far as production of the will as pointed by the appellant’s counsel is concerned, the same is justified on the ground that on the very first occasion when the plaintiff started claiming under the gift, defendant has produced the will Ex.B-45. He submits that in view of the confidence of late Subbaiah on the plaintiff that he would maintain Subbamma, no allotment was made for his wife which cannot be said to be un-natural by itself and it cannot be a suspicious circumstance. So far as the experts evidence and his report Ex.C-17 is concerned, learned counsel points out that handwriting examination is never treated as an exact science and points out that the expert had only one document of admitted signature available for comparison namely Ex.A- 11. While the testator was 65 years old when he had executed Ex.B- 45 will, the said signature is sought to be compared with his signature in Ex.A-11, which was separately marked as Ex.A-1 but the said admitted signature was 6 years earlier to Ex.B-45. However, apart from time gap and the numerous variables in the signatures appearing in the admitted and disputed documents has to be appreciated with the fact that PW.4 expert is a non-telugu person and he has proceeded to give the opinion on the signatures of the testator in telugu. Keeping all these factors in mind, and keeping in view of the evidences of DWs. 5 and 6, the courts below have rightly rejected the said evidence of PW.4 and upheld the said will Ex.B-45. In the light of these rival contentions, the first substantial question of law as extracted above needs to be addressed. 12. I have seen Ex.B-45 will from the records together with Ex.A-11, which contains Ex.A-1 signature. Both the counsel have also perused the aforesaid documents together with the expert report Ex.C-17 which contains the enlargements of disputed and admitted signatures as above. It is not in dispute that there is 6 years gap between the admitted and disputed signatures, nor there is any dispute of the fact that only one signature under Ex.A-11 was available to the expert for comparison. Nature of science of handwriting being not an expert science is also not in controversy. The report by itself being in the nature of an opinion has to be examined in the light of these attending circumstances. Lower appellate Court has placed reliance upon the decision of this Court in, Gutta Sriramulu Naidu and another Vs. State[1] wherein it was held that : “An expert witness however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him.” This coupled with the fact that Ex.B-45 will was executed by the testator when he was sufficiently old than he was at the time of Ex.A-1 signature appearing in Ex.A-11, there arise several inconclusive questions from the evidence of PW.4 and his report Ex.C-17. I have examined the evidence of DWs.5 and 6. DW.5 who is the attestor of Ex.B-45 was a Record Assistant in Z.P. High School. He states in his evidence that the testator executed the will in 1963 at Phalaram in his house, he stated that by the time he went there, Subbaiah and Bheema Gowd the scribe DW.6 were there. After the witness went there Subbaiah expressed his desire to execute will, then DW.5 appears to have asked him what is the need for executing the will, then Subbaiah expressed that he was getting old and not keeping good health and the defendant was very young and therefore will had to be written to safeguard them. He states that DW.6 wrote a rough draft of the will and after Subbaiah approved all the contents, DW.6 copied it on the stamp paper, it was then read over by DW.6 and after approval by Subbaiah, he signed at two places on the first page and on the second page. Then, it was given for attestation to the witness DW.5 who attested it apart from P.R. Chandra Sekharaiah another attestor and thereafter it was signed by the scribe DW.6 and given back to the attestor. The witness also produced Ex.X-3 draft will said to have been attested by DW.6 prior to Ex.B-45, which the witness claims to have located in old papers recently. 13. In the cross-examination, he stated that he used to visit the house of Subbaiah during his father’s time as well and he states that he used to procure the provisions from the shop of Subbaiah on credit. In the cross-examination also the witness stood by the above statement and also in chief states that when questioned about Subbaiah executing will in favour of the defendant in respect of the properties, Subbaiah is said to have stated that they are living together and defendant will protect Subbamma and as such there was no need to confer any properties on her. He denied the suggestion of the plaintiff and stated that DW.6 was the village Munsif of Phalaram. DW.6 the scribe has also corroborated the evidence of DW.5 and stated that he first wrote a draft as per the desire of Subbaiah and after its approval it was copied on the stamp paper and then signed by Subbaiah and by attestors and then by the scribe himself. He further pleaded ignorance of the draft of the will prepared prior to execution of Ex.B-45 will and stated that Subbaiah was doing business but he was suffering from Asthama two or three years prior to his death and that Subbaiah was literate and he was able to read and write. He also stated that he advised Subbaiah to register the will but he stated that it is not necessary as it involves huge expenditure. He also explained that Ex.B-45 was written with the pen of the scribe and the attestor also signed with the pen of the scribe, same words were explained by DW.6 that he himself wrote them thickly meaning boldly and the rest of the letters were written in normal ink flow. The objections of other side with respect to difference in ink in Ex.B-45 was explained by this witness in the cross-examination itself, that the difference in ink appearing in Ex.B-45 is due to excess flow of ink when the pen was jerked for proper flow of ink. The said evidence is also not shattered in cross-examination and keeping in view of all these circumstances, the Courts below have recorded the finding that DW.5 and DW.6 are direct witnesses to the execution of the document Ex.B-45 and the same is consistent and corroborated and reliable on reappreciation of evidence. I am unable to find any infirmity in the findings recorded by both the Courts below in upholding Ex.B-45 will of the testator, which explains that the defendant has duly explained all the circumstances relating to Ex.B-45 to the satisfaction of the Courts below. The substantial questions of law first framed as above therefore deserves to be answered in favour of the respondent- defendant and against the appellant-plaintiff. 14) So far as the second substantial question of law is concerned, the same relates to the rejection of additional evidence application moved by the appellant before the lower appellate Court in I.A. 8 of 1999. By the said application, appellant wanted to produce a document purporting the purchase of suit schedule properties by Subbamma herself under a document dated 14-05-1937. The aforesaid document was sought to be produced as additional evidence primarily to support the deed of gift Ex.A-3 dated 06-02-1980 executed by Subbamma in favour of the plaintiff and to substantiate that the suit schedule properties are individual properties of Subbamma and are not the properties of Subbaiah. Obviously, the appellant-plaintiff wants to contend that when Subbaiah was not the owner of the property, the will Ex.B-45 executed by him, does not divest the title of Subbamma over the suit schedule properties under the aforesaid document dated 14-05-1937 sought to be produced as additional evidence. The said application I.A.8 of 1999 was rejected by the lower appellate Court on the ground that it completely changes the stand of the appellant when the suits are proceeded on the footing that the Subbaiah was the admitted owner of all the properties. The order of the lower appellate Court in dismissing the said I.A.8 of 1999 along with the appeal is therefore made a separate substantial question of law in this appeal. I am unable to appreciate the contention of the learned counsel for the appellant with respect to the above document dated 14-05-1937. The lower appellate Court was clearly justified in rejecting the said document as it would not only change the very pleadings of the appellant-plaintiff but would completely change the complexion of the suit itself. It is also crucial to notice that except producing the said document as additional evidence, the appellant has not sought any amendment of plaintiff nor has sought any additional plea by way of amendment. Assuming that the appellant was entitled to any such new plea on the basis of the discovery of the said new document, the same would amount to permitting the appellant to withdraw his admissions in the pleading that all the properties belonged to late Subbaiah. That being clearly impermissible and there being no sufficient cause whatsoever for receiving the said evidence, mere having this additional evidence to be received would serve no purpose whatsoever in the absence of any amendment of pleadings, sought for. I am also not satisfied that the said evidence falls within the ingredients of Order 41 Rule 27 of C.P.C. and as such the rejection of the said evidence by the lower appellate Court is even otherwise sustainable. The second substantial question of law also therefore is answered against the appellant-plaintiff. Consequently the appeals fail and are accordingly dismissed. However, there shall be no order as to costs. ________________________ VILAS V. AFZULPURKAR, J. 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