*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + SECOND APPEAL Nos.185 & 186 of 1999 %05.08.2010 #Dwarampudi Tulasamma (died). ..appellant. Vs. $Nallamilli Atchireddy and others. ..Respondents. !Counsel for the appellant : Sri C.B.Mohan Reddy and V.V.L.N.Sarma ^Counsel for the Respondents : Sri G.Krishna Rao <Gist : >Head Note: ?Cases Referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY S.A.Nos.185 and 186 of 1999 COMMON JUDGMENT: These two Second Appeals are interconnected. Hence, they disposed of through a common judgment. The parties herein are referred to as arrayed in S.A.No.185 of 1999. Smt.Thamanampudi Lakshmi Devi and Dhani Reddy had two daughters, by name Tulasamma, the appellant (who is since dead and represented by her Legal Representatives), and Mangayamma, the 2nd respondent. During his life time, Dhani Reddy is said to have executed a Will, dated 30.01.1997, in favour of the 2nd respondent, in respect of a house, in an area of 280 square yards. Stating that a deed of settlement, dated 28.02.1983, said to have been executed by her was brought into existence by the 2nd respondent, Lakshmi Devi filed O.S.No.227 of 1983 in the Court of Principal District Munsif, Tadepalligudem, against the 2nd respondent, for the relief of cancellation of the document and to declare the same as invalid, illegal and void. She pleaded that the deceased-appellant was taking care of her and at a time when she was on pilgrimage, the 2nd respondent in collusion with her husband, the 1st respondent and son-the 3rd respondent, brought into existence the document, Ex.A.2. The 2nd respondent, who alone was the defendant in that suit, filed written statement, denying the allegations. During the pendency of that suit, Lakshmi Devi died. Stating that Lakshmi Devi executed a Will in her favour, the appellant i.e. Tulasamma, came on record and continued the proceedings. The deceased-appellant independently filed O.S.No.228 of 1985 in the same Court, against the respondents, for the relief of perpetual injunction, in respect of the same property. She pleaded that she has title and possession in respect of the said property and the respondents are interfering with her possession without any basis. The trial Court clubbed both the suits and recorded common evidence. Through common judgment, dated 11.11.1992, it has decreed both the suits. The respondents filed A.S.Nos.7 and 8 of 1993 in the Court of Senior Civil Judge, Tadepalligudem, against the judgments rendered by the trial Court, in both the suits. The appeals were allowed through separate judgments, dated 21.12.1998, and the decrees passed by the trial Court were reversed. Hence, these two Second Appeals. Sri C.B.Ram Mohan Reddy and Sri V.V.L.N.Sarma, learned counsel for the appellants, submit that it was clearly demonstrated before the trial Court that the document-Ex.A.2 was not signed by Lakshmi Devi, and that it was brought into existence by respondents 1 and 2. They contend that criminal prosecution is also initiated against the 1st respondent on the charges of cheating and that circumstance, was totally ignored by the lower Appellate Court. They further contend that, Ex.A.2 was sent for comparison by Handwriting Expert with the signatures of Lakshmi Devi on the vakalat and plaint in O.S.No.227 of 1983 and the Expert has opined that the signature on Ex.A.2 is not genuine. Learned counsel submit that the lower Appellate Court has misread the evidence, particularly that of PW.4 in arriving at the conclusion that Ex.A.2 is not tainted with any illegality or other incriminating circumstances. They further submit that even if the settlement deed is held to be valid and true, it stands superseded by the Will executed by Lakshmi Devi, in favour of her daughter – Tulasamma. Sri G.Krishna Rao, learned counsel for the respondents, on the other hand, submits that, except pleading that Ex.A.2 was fabricated, the appellants did not plead any specific circumstance recognized in law. He contends that PWs.4 and 5, the scribe and witness of Ex.A.2 have clearly stated that the executant i.e. Lakshmi Devi, was very much present, when the document was executed at the Registrar’s Office. As regards the report of the Expert, learned counsel submits that an application under Section 45 of the Indian Evidence Act was filed deliberately, after the death of Lakshmi Devi and there was no undisputed signature of Lakshmi Devi for being sent for comparison with the one on Ex.A.2, or the record of the Sub-Registrar. He further submits that the signatures on plaint and vakalat in O.S.No.227 of 1983 are almost shrouded in suspicion and mystery. Learned counsel contends that there is nothing unnatural in the settlement being made by the mother in favour of one of her daughters. The deceased-appellant figured as plaintiff in both the suits. O.S.No.227 of 1983 filed by her mother was for the cancellation of the settlement deed, dated 28.02.1983, whereas O.S.No.228 of 1985 was filed by herself for the relief of perpetual injunction, as regards the same property. The entire dispute, in both the suits, turned around the genuinity or otherwise of the original of Ex.A.2. The respondents flatly denied the allegations and asserted their rights under Ex.A.2. The trial Court framed the following issues, in O.S.No.227 of 1983: a) “Whether the registered settlement deed, dated 28.02.1983 was brought into existence by the plaintiff under the circumstances as stated in the written statement? b) Whether the suit document dated 28.02.1983 is rank forgery as stated in the plaint? c) Whether the plaintiff is entitled for the cancellation of the settlement deed dated 28.02.1983 as prayed for? d) Whether this defendant is entitled for exemplary costs?” Since the relief claimed in O.S.No.228 of 1985, is one for perpetual injunction, only one issue in relation thereto, was framed. On behalf of the appellants, PWs.1 to 6 were examined and Exs.A.1 to A.18 were filed. On behalf of the respondents, DWs.1 and 2 were examined and Exs.B.1 to B.12 were filed. The report of the Handwriting Expert and the other related documents were filed as Exs.C.1 to C.9. The trial Court decreed the suits, through common judgment. The lower Appellate Court proceeded to discuss the matter almost on the same issues and reversed the decrees passed by the trial Court. O.S.No.227 of 1983 was filed for the relief of cancellation of gift deed – Ex.A.2. The grounds pleaded therein are that Lakshmi Devi, the original plaintiff, did not execute the document and that it was forged. Apart from filing the suit, she has also submitted a complaint under Section 420 of I.P.C. etc., against her son-in-law, the 1st respondent herein. It is a different matter that the criminal case ended in acquittal. The proper persons to speak about the manner in which the settlement deed came into existence are the scribe and witnesses mentioned therein. PW.4 is the scribe and PW.5 is one of the witnesses. In the chief-examination, PW.4 stated that he gave evidence in C.C.No.300 of 1983 on behalf of Lakshmi Devi and against the 1st respondent herein. He stated that two ladies came to him on 28.02.1983 with a request to scribe a settlement deed. In the chief- examination itself, he stated that the attestors for the document were brought by Lakshmi Devi, the mother and her daughter, Mangayamma, the 2nd respondent. According to him, he saw Lakshmi Devi for the first time. In a way, the chief-examination at some places proceeded as though it is a cross-examination. It reads as under: “…The attestors were brought by Mangayamma and Lakshmi Devi. I saw Lakshmi Devi for the first time. I do not know whether the person that approached me is Lakshmi Devi or not...” Once a witness examined by the appellant herself has stated that Lakshmi Devi went to the Office of Sub-Registrar, asked PW.4 to scribe the document, and brought the attestors, the whole basis on which the suit was filed, ceased to exist. Added to that, in his cross- examination, the following information was elicited through him. “The young lady, which I stated in my chief is defendant in this suit. The stamps were brought by the other lady. The identifying witness also present along with them. I scribed Ex.A.2, according to the instructions of the old lady Lakshmi Devi, but not others. I never scribed the documents of impersonation and misrepresentation. Ex.A.2 was read over to the executant and I got affixed the thumb impression of the executant. The document was attested by the attestors in my presence.” Nothing more is needed for rejecting the claim of the plaintiff. PW.5, one of the attesting witnesses, made an attempt to feign ignorance about the whole episode of the scribe of the document and his attesting the same. In the cross-examination, he said that he knew Lakshmi Devi and that he attested the document, though he stated that he does not remember as to why he signed before the Sub-Registrar. That statement is hardly of any relevance. With the execution of a document, which has the effect of transferring or conferring title in respect of immovable property, valuable rights accrue to the parties mentioned therein. Though Ex.A.2 is named as settlement deed, for all practical purposes, it is a gift deed, since the transaction is not supported by consideration. A person, who executed such documents, has the liberty to revoke the settlement before the person for whose benefit it executed, accepts the gift. The plaintiff was very much aware that the settlement has taken effect and that there did not exist any possibility for revocation thereof. Therefore, she has chosen to file a suit for cancellation of the document. A document, which is otherwise validly executed, can be cancelled only on certain grounds known to law, such as the document being the result of fraud, coercion, undue influence, misrepresentation etc. The ground pleaded by the plaintiff for cancellation of Ex.A.2 did not fit into those mentioned in the Indian Contract Act. The allegation was that respondents 1 and 2 have impersonated her. Heavy burden rested upon her to prove those facts. Apart from not discharging that burden, the plaintiff has adduced evidence, which was almost suicidal for her case. The trial Court decreed the suits by placing reliance upon the report of an Handwriting Expert. The exercise for comparison of the signature or thumb impression in relation to Ex.A.2, on the one hand, and undisputed documents, on the other hand, did not take place during the lifetime of Lakshmi Devi. The foolproof method to undertake such a comparison would have been to procure the thumb impressions of Lakshmi Devi, and the Court ought to send them for comparison with those on the records of Sub-Registrar, duly procuring them. For reasons best known to her, she did not choose to do so. After her death, her daughter, Tulasamma, filed an application. The undisputed signatures/thumb impressions sent for comparison were those on the vakalat and plaint in O.S.No.227 of 1983. It must not be forgotten that there was serious acrimony between the parties and a criminal case filed by her against the 1st respondent, ended in acquittal. The propensity of the parties, in such cases, to put their signatures in a different way, cannot be ruled out. It was not at all safe to treat the signatures on the vakalat and plaint as undisputed or authenticated. At any rate, the opinion rendered by an Expert is only a piece of evidence and not a conclusive proof. Once PWs.4 and 5 deposed that Lakshmi Devi executed the document-Ex.A.2, the suit itself became lifeless and the comparison of signatures by the Expert was almost an act of postmortem. The alternative contention of the plaintiff is that even if Ex.A.2 is treated as valid and genuine, it stood cancelled with the execution of the Will deed by Lakshmi Devi, in favour of Tulasamma. Such an eventuality would have arisen, if only the 2nd respondent did not act upon Ex.A.2 or that she did not accept the benefit thereunder. Not only she has accepted the benefit of settlement, but also has asserted her rights upon the property. That in fact was the cause of action for Lakshmi Devi to file the suit. Further, Lakshmi Devi did not state anywhere that she has revoked the gift. The execution of a Will by an individual in respect of a property that was gifted by him, or her, on an earlier occasion, would not have the effect of revoking the gift. Such a facility exists only in case of two Wills. Execution of a subsequent Will would impliedly cancel a former one. This is so because a Will executed by an individual would not lead to any legal consequences till the death of the executant and before that eventuality takes place, any number of changes or alterations can be made. Settlement or gift on other hand, take place as soon as the beneficiaries thereunder, accept the donation. Even an express revocation of such a disposition is not possible, once the benefit is accepted by the person named therein. Therefore, the question of a settlement being revoked impliedly, on account of execution of a subsequent Will, does not arise. Viewed from any angle, this Court does not find any basis to interfere with the judgments rendered by the lower Appellate Court. The Second Appeals are accordingly dismissed. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY, J Dated:05.08.2010 Note: L.R. copy to be marked. GJ