THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.840 of 2001, TRAS.Nos.191 & 606 of 2003 and Cross Objections No.840 of 2001 COMMON JUDGMENT: All these appeals arise out of a common judgment and decree dated 26.05.2000 in O.S.No.6 of 1994 and O.S.No.4 of 1999 on the file of the Additional Senior Civil Judge, Kurnool. The plaintiff and defendants 1 and 2 are the brother and sisters and the children of one Smt.Rahamat Bee, who died on 24.02.1992. The 3rd defendant is the husband of the 2nd defendant in O.S.No.6 of 1994, which was originally filed for partition of the schedule properties into half share to the plaintiff and the remaining half share to the defendants 1 and 3. The defendant No.3 in O.S.No.6 of 1994 is the plaintiff in O.S.No.4 of 1999 and the plaintiff and the defendants 1 and 2 in O.S.No.6 of 1994 are the defendants in O.S.No.4 of 1999. The allegations in the plaint go to show that late Rahamat Bee was the owner of the property and item No.1 relates to the acquisition of land in Sy.No.651, where in O.P.No.11 of 1983 compensation was granted and the said amount was lying in deposit and as there was a dispute raised the Execution Proceedings which were closed. The suit was, therefore, filed for half share in plaint A-schedule property and also half share in plaint B-schedule property. The plaint B- schedule property is an extent of Ac.0-34½ cents of land in Sy.No.659 in item No.1, an extent of Ac.1- 18½ cents in Sy.Nos.907-A and 907-B and item No.3 is an extent of Ac.0-02½ cents in Sy.No.781/B-part. The 1st defendant filed a written statement supporting the contention of the plaintiff to some extent and further pleading that on 08.12.1991 Rahamat Bee executed a will with regard to A-schedule property and the plaintiff and defendants 1 and 2 are entitled for equal share and the petition was filed before the Executing Court based on the said will and due to the illness of the Advocate, it could not be proceeded with. It was further pleaded that so far as item No.1 of the B-schedule property is concerned, Rahamat Bee also executed another will on the same day conveying B-schedule property to the plaintiff and defendants 1 and 2. The wills were attested by the plaintiff, 1st defendant and 2nd defendant along with their husbands and it was prepared by an Advocate Sri S.T.Ali Khan. So far as the other items are concerned, it was pleaded that the stand of the 2nd defendant and the 3rd defendant with regard to the execution of the gift deeds on 25.11.1991 with regard to land in Sy.No.657 and also gift deeds with regard to item No.1 are disputed. As the 2nd defendant has set up a will that on 26.11.1991 item No.2 was given to her under a will, the said will was also disputed. As the claim of the 3rd defendant that the item No.3 sold for Rs.15,000/- and an agreement was executed on 05.12.1991 is also disputed. Therefore, the 1st defendant pleaded that one-third share may be given to her in plaint A-schedule property and item No.1 of B-schedule property and 1/4th share in item Nos.2 and 3 of the B-schedule property. The 2nd defendant filed a written statement contending that on 08.12.1991 the mother executed a will with regard to the A-schedule property and the plaintiff was also a consenting party to it when E.P.No.510 of 1988 in O.P.No.11 of 1983 was filed and, therefore, the plaintiff is not entitled to half share as claimed. It was also further pleaded that with regard to item No.1 of B-schedule property, an extent of Ac.0-08 cents of land was conveyed to the 3rd defendant and Ac.0- 09 cents of land was conveyed to the 2nd defendant under registered gift deed dated 25.11.1991 and the 2nd defendant has sold away the property to the 4th and 5th defendants in the year 1993 and, therefore, only Ac.0-17 cents of land is available for partition. With regard to item No.2 of B-schedule property, it was pleaded that on 26.11.1991 the mother executed a registered will conveying the properties to the 2nd defendant and, therefore, she became entitled to the said property. Coming to know about the above will, the plaintiff and the 1st defendant raised disputes and a sum of Rs.30,000/- was agreed to be paid to the plaintiff on 08.12.1991 and it was received on 04.01.1993 after the death of the mother of the plaintiff and, therefore, the plaintiff is estopped from disputing the same. With regard to item No.3 of the schedule property, the 3rd defendant claimed to have purchased the same under an agreement of sale dated 05.12.1991 and a sum of Rs.15,000/- was paid as consideration and possession was delivered. The 3rd defendant reiterated the contentions raised by the 2nd defendant and also claimed the purchase under agreement of sale. Subsequently, the plaintiff amended the plaint claiming that the gift deeds alleged by the 2nd defendant dated 25.11.1991 and also the will dated 26.11.1991 and the settlement and payment of Rs.30,000/- and the agreement of sale in favour of the 3rd defendant are all denied. The 3rd defendant, who claims to have purchased the item No.3 of the schedule property under an agreement of sale, filed the suit in O.S.No.66 of 1999 on the file of the Principal District Munsif, Kurnool against the plaintiff and defendants 1 and 2 for specific performance of the agreement of sale. After framing of the necessary issues, both the suits were tried together and evidence was recorded in O.S.No.6 of 1994. On behalf of the plaintiff, P.W.1 was examined and marked Exs.A- 1 and A-2 and on behalf of the defendants, D.Ws.1 to 7 were examined and marked Exs.B-1 to B-15. After considering the evidence on record, the learned Judge passed a preliminary decree for dividing A-schedule property into three shares and partition of item No.1 of B-schedule property into four shares and allotment of two shares to the plaintiff and also decreed the suit in O.S.No.4 of 1999 for specific performance and dismissed the suit of the plaintiff with regard to item Nos.2 and 3 of the B-schedule property. Aggrieved by the said judgment, the defendants 2 and 3 filed A.S.No.840 of 2001 questioning the decree of the lower Court in rejecting the gift deeds Ex.B-5 and B-6 and also will dated 08.12.1991. The plaintiff filed the Transfer A.S.No.606 of 2003 questioning the refusal of the partition of item Nos.2 and 3 of the schedule properties and also filed Transfer A.S.No.191 of 2003 questioning the decree in O.S.No.4 of 1999 granting the relief of specific performance. The 1st defendant in O.S.No.6 of 1994, who is 2nd defendant in O.S.No.4 of 1999 filed cross objections in A.S.No.840 of 2001 questioning the decree in O.S.No.6 of 1994 in allotting two shares to the plaintiff therein and allotting 1/4th share to her instead of 1/3rd share. The points that arise for consideration are: 1. Whether late Rahamat Bee executed the will on 08.12.1991 with regard to the A-schedule property and also item No.1 of B-schedule property? 2. Whether the gift deeds in favour of defendants 2 and 3 are valid? 3. Whether the will dated 26.11.1991 in favour of the 2nd defendant conveying the item No.2 of the B-schedule property is true and the plaintiff has accepted the same? 4. Whether the agreement of sale pleaded by the 3rd defendant is true and the decree for specific performance passed by the lower Court is legal and sustainable? POINTS: Before appreciating the evidence on record, it is to be noted that the finding of the lower Court with regard to the wills Ex.A-1 relating to the item No.1 of B-schedule property and Ex.B-3 relating to the A- schedule property, the learned Senior Civil Judge, accepted both the wills as true but found that the plaintiff has not consented for the will Ex.A-1 dated 08.12.1991 relating to item No.1of B-schedule property and, therefore, discarded it. So far as the gift deeds are concerned, which are marked as Exs.B-5 and B-6 dated 25.11.1991, the learned Judge found them to be true but there was no acceptance of the same and consequently rejected the same. The learned Judge accepted the will Ex.B-15 dated 26.11.1991 with regard to item No.2 of the B- schedule property and also accepted the agreement between the 2nd defendant and other parties under Ex.B-12 and also the receipt Ex.B- 13 dated 04.01.1993 and found that the plaintiff received a sum of Rs.30,000/-. Though the plaintiff is aware of the will dated 08.12.1991 with regard to the A-schedule property and also item No.2 of the B- schedule property, which was executed on the same day and registered by the mother, the plaint is conspicuously silent about the same. Ex.A-1 is the will relating to the item No.2 of the B-schedule property and Ex.B-3 is the will with regard to the A-schedule property. If really, the plaintiff has not consented to it and those documents are fabricated documents, the plaint should have been based with an attack on those wills. But curiously, the plaintiff has claimed half share in all the properties as per Muslim Law and 1/4th share each to the defendants 1 and 2. It is also to be mentioned that Ex.A-1 will was produced by the plaintiff himself from his custody and his evidence goes to show that the said will was handed over to him by Ibrahim Khan, who was the Advocate of the deceased Rahamat Bee in the land acquisition proceedings. The plaintiff admits that he attested Ex.A-1 will and it contains his signature. His evidence is that he does not know the contents and that he signed on blank papers is an after thought and it was not even pleaded in the amended plaint. According to his evidence, Ex.A-1 was prepared by Sri S.T.Ali Khan, Advocate and it was got typed by one Izzaz Ahamad. Therefore, it is quite clear that the will executed by the mother during her lifetime and it is particular to be mentioned that Ex.A-1 and Ex.B-3 were attested by the plaintiff, 1st defendant, 2nd defendant and their husbands. Therefore, the wills were executed with the consent of all the parties. It is also not in dispute that Ex.B-3 was accepted by the plaintiff and it was also pleaded so in the Execution Proceedings but, however, in the present suit half share was claimed in plaint A-schedule property. D.W.2 was an advocate at Kurnool and according to him, he prepared the wills Ex.A-1 and Ex.B-3 on 08.12.1991 and the contents were read over to the executant of the will and it was attested by the plaintiff and defendants 1 and 2 and their husbands. The mother of the plaintiff is said to have come along with the plaintiff and voluntarily executed the wills. In the cross-examination of this witness, nothing could be made out as to how he is interested in fabricating the will. In fact, the finding of the lower Court clearly goes to show that both the wills are true. But, however, the learned Judge found that the plaintiff has consented for Ex.B-3, but not for Ex.A-1. This finding of the learned Judge is ineffective in pursuance of the evidence of D.W.2, who clearly stated that the plaintiff came along with the mother. If really, the plaintiff was not a consenting party, there was no need for him to attest the will. It cannot be forgotten that Ex.A-1 and Ex.B-3 were executed on the same day and have said to have registered and when once the consent of plaintiff for Ex.B-3 is inferred, consent of Ex.A-1 cannot be doubted. Therefore, I have no hesitation in holding that the will Ex.A-1 is binding on the plaintiff and also the defendants 1 and 2 and the plaintiff cannot avoid the same. As such, the plaintiff cannot get half share in item No.1 of the plaint B-schedule property. This also takes us to the claim of the defendants 2 and 3 about the validity of the gift deeds Exs.B-5 and B-6. These two registered documents were executed on 25.11.1991. The learned Judge found that these documents were executed, but however, there is no proof of acceptance and, therefore, they are not valid. The question is as to whether these two gift deeds were acted upon or not. In fact, according to the case of the plaintiff and 2nd defendant about Ac.0-17 cents of land were given to the defendants 2 and 3 under Exs.B-5 and B-6. If really, the said gift deeds were acted upon and Rahamat Bee intended that the property should be taken by the defendants 2 and 3 under the gift deeds Exs.B-5 and B-6, there is no reason as to why on 08.12.1991 the will Ex.A-1 shall be executed by her. In fact, this will is also relied upon by the 1st defendant in the written statement. The execution of this will Ex.A-1 having been established, it clearly goes to show that the gift deeds were not acted upon by the parties and Rahamat Bee did not consent for the same and the circumstances under which they were obtained are suspicious. Therefore, the defendants 2 and 3 cannot claim that under Exs.B-5 and B-6 they are entitled for Ac.0-17 cents and remaining alone is liable for partition. I have no hesitation in holding that when once Ex.A-1 will is proved to be true, which was attested by all the interested parties, they are bound by it and consequently the defendants 2 and 3, who attested Ex.A-1 will, are estopped from claiming any rights under the gift deeds Exs.B-5 and B-6, which, evidently, seems to have been ignored and not acted upon. Therefore, it has to be held that the plaintiff and defendants 1 and 2 will be entitled to 1/3rd share in the item NO.1 of the plaint B-schedule property. The other dispute between the parties is with regard to item No.2 of the plaint schedule property, which is an extent of Ac.1-18½ cents, which, according to the defendant, was conveyed to her under the will Ex.B-15. Evidently, it is an unregistered will. As can be seen from the evidence on record and also several documents executed between the parties, it appears that on 08.12.1991 all the family members have resolved their disputes and with regard to the parties of the mother, different documents were executed. Ex.B-3 as already stated, which is registered will, relates to plaint A-schedule property and Ex.A-1 relates to item No.1 of the B-schedule property. According to the case of the defendant No.2, on the same day when the dispute was raised with regard to the will Ex.B-15 conveying the item No.2 of the B-schedule property, it has been settled and an agreement was entered, wherein the plaintiff has agreed to receive Rs.30,000/- and the plaintiff agreed not to raise any dispute with regard to the said will. The time for payment as per this agreement is one year. The lower Court has accepted this agreement Ex.B-12 and also the payment of Rs.30,000/- on 04.01.1993. In fact, the evidence of D.W.2 shows that he also drafted the agreement on the same day and another agreement is said to have been executed between defendants 1 and 2, which is marked as Ex.B-4. In cross-examination, the plaintiff admitted that the agreement dated 08.12.1991 bears his signature and D.W.2 is said to have obtained his signatures for settlement of the disputes between him and defendants 1 and 2. He also claims to have affixed the signature on a white paper. He also admitted that the receipt dated 04.01.1993 for Rs.30,000/-, which is Ex.B-13, bears his signature. Added to the above evidence, the evidence of D.W.7, who is also an advocate, stated that on 08.12.1991 when his father Mohd. Ibrahim was sick, Rahamat Bee and others came and there was a panchayat earlier and the documents Exs.A-1, A-3, B-4 and B-12 were prepared on 08.12.1991. This clearly goes to show that the documents dated 08.12.1991 have come into existence with the consent and the will of all the parties and they are bound by it. Therefore, in view of the above circumstances, I hold that the innocence pleaded by the plaintiff with regard to the wills and also the understanding with regard to item No.2 of the B-schedule property cannot be accepted. I hold that the rejection of the will Ex.A-1 by the lower Court is not proper. So far as the agreement in favour of the 3rd defendant is concerned, item No.3 is said to have been sold by Rahamat Bee for a consideration of Rs.15,000/- on 05.12.1991 and entire consideration is said to have been paid. Evidently, after the death of Rahamat Bee, the legal heirs have not executed the registered sale deeds. Apart from the interested evidence of defendants 2 and 3, the evidence of D.W.6, who was also a tenant of the premises, spoke about the gift deeds being attested by him and also the will dated 26.11.1991. He also spoke about the sale agreement in Ex.B-14 in favour of the 3rd defendant. If really, there was any dispute with regard to this agreement of sale, the issue would have been settled on 08.12.1991 when the disputes with regard to all the other properties were settled. Probably because the agreement under Ex.B-14 is proved, though discussions or decisions about the sale agreement have crept in on that day. If such property is available for sharing some arrangement would have been made on the same day. The learned Judge while considering this aspect found that the contention of the plaintiff that the boundaries were not properly given and that the defendant No.3 is not entitled for the relief of specific performance, cannot be accepted. The commissioner has visited the property and noted down the boundaries and also the possession of the 3rd defendant. The mere delay or failure to obtain a registered sale deed during the lifetime of Rahamat Bee is no ground to disbelieve the agreement. It cannot be forgotten that the defendant No.3 is no other than the son-in-law and is also an attestor on all the documents along with the plaintiff and defendants 1 and 2. Furthermore, the deceased was living with defendants 2 and 3 only and as there was some adjacent site, this property might have sold for the benefit of the defendant No.3. There is no serious cross- examination to disprove the payment of consideration of Rs.15,000/- and in fact the suit was filed in O.S.No.63 of 1996 for specific performance of the agreement of sale. Taking into consideration the probabilities, the learned Judge has accepted the agreement of sale. The learned counsel for the plaintiff/1st respondent relied upon the decisions reported in Dutta Seethamaha-lakshmamma (died) by LRs. V. Y.Balaramaiah[1]; Ruttala Simhachalam v. C. Bhimeswara Jagannadham[2] and Korada Appalanarasamma v. Kinthali Varahanarasimhamurty[3], wherein the period of limitation for enforcement of an agreement of sale were considered. In this case, evidently, the agreement of sale was said to be dated 05.12.1991 and no attempt was fixed for enforcement of the contract or obtaining of registered sale deed. The entire consideration was paid and, therefore, the refusal gives the cause of action for filing of the suit and the refusal can only be taken after the filing of the amended plaint in I.A.No.429 of 1996, which was allowed on 28.08.1997 when the 3rd defendant was added as a party to the suit and the plaintiff challenged the gift deeds and the agreement of sale on 29.09.1997 by virtue of the amendment in the plaint. Therefore, the decree of specific performance granted by the lower Court does not call for any interference. Accordingly, it is held that the judgment and decree of the lower Court, so far as it relates to item No.1 of the B- schedule property, cannot be sustained and the will Ex.A-1 is binding on all the parties and the plaintiff, defendants 1 and 2 are entitled for equal shares. So far as other reliefs granted in the suit are concerned, the judgment and decree passed by the lower Court with regard to the specific performance of the contract of sale or with regard to the validity of the will in favour of the defendant No.2 with regard to item No.2 of B- schedule property, does not call for any interference. Accordingly, the Transfer A.S.Nos.606 of 2003 and Transfer A.S.No.191 of 2003 are dismissed; A.S.No.840 of 2001 is partly allowed and the properties in item No.1 of B-schedule property shall be divided as per the will Ex.A-1 and the plaintiff, defendants 1 and 2 will be entitled to one-third share each. The alienations effected by the defendants 2 and 3 with regard to item No.2 in favour of the defendants 4 and 5 shall be worked out as equities from the share of the 2nd defendant in item No.1 of B-schedule property and other properties; and the Cross Objections No.840 of 2001 are partly allowed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 09.08.2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.840 of 2001, TRAS.Nos.191 & 606 of 2003 and Cross Objections No.840 of 2001 Date: 09-08-2011 MR [1] 2003 (4) ALD 381 (DB) [2] 2003 (4) ALD 389 (DB) [3] 2003 (4) ALT 584