THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.C.C.A. No.173 of 2001 JUDGMENT: This appeal is filed by the plaintiffs, whose suit for partition – O.S.No.1416 of 1997 on the file of the Additional Judge, City Small Causes Court, Hyderabad-cum-VI Senior Civil Judge, City Civil Court, Hyderabad, was dismissed under judgment and decree dated 20.12.2000. For the sake of convenience, the parties are referred to as they are arrayed in the suit. The plaintiffs filed the aforesaid suit on 27.08.1997 for partition, separate possession and allotment of 2/3rd share to the plaintiffs in the suit schedule house. The brief facts are that the first plaintiff and the first defendant are the son and daughter of second plaintiff and his wife - Manda Laxmamma. According to the plaintiffs, the suit schedule house was purchased by the second plaintiff while he was in service, in the name of his wife Laxmamma under a registered sale deed dated 20.08.1979 – Ex.A-1. The defendant, who is the daughter of second plaintiff and Laxmamma, and sister of first plaintiff, was married to one Kailash Rao and it is alleged that as the plaintiffs along with Laxmamma were residing at Mumbai, during the service of the second plaintiff, the defendant and her husband, being daughter and son-in-law, were accommodated and permitted to stay and occupy a part of the suit scheduled house, while the rest of the suit schedule house continued to be in the custody of Laxmamma. While the plaintiffs alleged that the said Laxmamma died in testate on 23.10.1995 at Hyderabad, the defendant alleges that she died after leaving behind a Will dated 16.07.1986 – Ex.B-3. It is alleged that after the death of Laxmamma disputes between the plaintiffs and the defendant arose on account of sharing the suit schedule house and it is alleged that the defendant under the influence of her husband refused to share the suit schedule house with the plaintiffs. The plaintiffs alleged that as the defendant was contemplating alienation of suit schedule house, they gave a public notice in Eenadu – Ex.A-10 on 07.08.1997 and also issued a legal notice – Ex.A-7 dated 09.08.1997 demanding partition. The plaintiffs did not receive any reply to the legal notice and thereafter they filed the present suit on 27.08.1997 claiming 1/3rd share for each of the plaintiffs and for partition and separate possession. The defendant filed a written statement alleging that Laxmamma bequeathed the suit schedule house in favour of the defendant under the Will – Ex.B-3 referred to above and that she is paying the taxes since the death of Laxmamma. The original Will, mutation order and property tax assessments are filed along with the written statement and later they were marked in evidence as Ex.B-2 - letter of Municipal Corporation of Hyderabad dated 27.06.1997 relating to mutation, Ex.B-3 - Will dated 16.07.1986 and Exs.B-4 and B-5 - property tax receipts. The defendant pleaded ignorance about any publication said to have been made by the plaintiffs but to the extent of legal notice – Ex.A-7, they claimed that they had issued a reply dated 16.08.1997 and suppressing the reply the plaintiffs filed the present suit. They also asserted that Ex.B-3 Will is genuine and it was duly notarized and therefore, even otherwise the defendant has perfected her title by adverse possession. It is specifically alleged in the written statement that the plaintiffs even knew of the Will executed by the deceased Laxmamma and that the suit is untenable and liable to be dismissed. The trial Court framed the following issues: 1. Whether the plaintiffs are entitled for partition and separate possession of the suit schedule property by allotting 1/3rd share each? 2. Whether the Will pleaded in the written statement of defendant is true? 3. Whether the defendant perfected her title by prescription? 4. To what relief? First plaintiff was examined as P.W.1 and Exs.A-1 to A-10 were marked on his behalf. While the defendant examined herself as D.W.1, her husband as D.W.2, another witness as D.W.3 and marked Exs. B-1 to B-6. The trial Court proceeded to consider the said evidence and determined issued No.2 first. The trial Court found that the plaintiffs have not denied the Will – Ex.B-3 pleaded by the defendant in the written statement in as much as the plaintiffs have not filed any rejoinder and secondly the plaintiffs had not referred to the reply notice issued by the defendant to the plaintiffs’ suit notice Ex.A-7. The trial Court was of the view that since the defendant has disclosed the Will in the said reply notice – Ex.A-9 for the first time, the plaintiffs ought to have issued rejoinder to the reply notice stating that the Will is not genuine and true. The trial Court, therefore, felt that suppressing the reply notice, the suit is filed. This shows that there is no categorical denial of genuineness and execution of the Will and consequently the burden on the defendant to establish the said Will Ex.B-3 is not so heavy and evidence adduced by the defendant proves the said Will. In view of the finding on issue No.2 that the Ex.B-3 Will is true and genuine, the trial Court has proceeded to consider and found that there are no suspicious circumstances as alleged by the plaintiffs and consequently, on issue No.1 also found that the plaintiffs are not entitled to any relief. The plea of adverse possession raised by the defendant was held against her. In view of the findings on issue Nos.1 and 2, the plaintiffs’ suit was dismissed. In this appeal, Sri Agasthya Sharma, learned counsel for the appellants/plaintiffs made various submissions and they were replied to by Sri V.V.C. Manohar, learned counsel appearing for the respondent/defendant. Learned counsel for the appellants/plaintiffs contends that the findings of the trial Court that there was suppression of reply notice by the plaintiffs is factually incorrect in as much as the plaintiffs had not received the reply notice by the date they filed the suit. The defendant herself has stated in para 4 of the written statement that the reply notice – Ex.A-9 dated 16.08.1997 was received by the plaintiffs’ advocate on 30.08.1997. Thus, the present suit, which was filed on 27.08.1997, would not have stated anything about the said reply notice. The trial Court, therefore, committed error in attributing the motives to the plaintiffs and doubting the bona fides of the plaintiffs. He also submitted that the plaintiffs had specifically alleged that Laxmamma died intestate and it is the defendant who was setting up claim under Will Ex.B-3. The burden, therefore, was entirely on the defendant and the trial Court was not right in thinking that the said burden on the defendant was not heavy on the ground that the plaintiffs had not denied the Will. The learned counsel states that since the suit was already filed on 27.08.1997, there was no necessity of issuing any rejoinder to the reply notice – Ex.A-9. He also submitted that proof of the Will and suspicious nature of the said Will have not been independently considered by the trial Court. According to him, Ex.B-3 Will having been signed by the deceased inconformity with the requirement under Section 63 of the Indian Succession Act, 1925, is not established by the defendant nor the defendant has dispelled the suspicious circumstances surrounding the Will. He submits that the plaintiffs admittedly do not have any other house of their own and thereby it is inconceivable that the deceased Laxmamma would deprive her husband and son of the only house which they have and Will it away in favour of the daughter as alleged by the defendant. He also submitted that the deceased as a house wife had no income of her own and the suit schedule house was purchased by the second plaintiff while he along with his wife and children were residing at Mumbai on account of service of the second plaintiff. The manner in which the Will is said to have been executed and projected by the defendant, therefore, makes it highly suspicious and ought not to have been accepted by the trial Court on the basis of the evidence adduced by the defendant. He also submits that the testatrix was illiterate as is evident from her right thumb impression appearing on the Will and the Will – Ex.B-3, which is in English, does not contain any recital that the testatrix was explained the document and that she put her thumb impression after knowing the contents of the documents. Further, the Advocate notary, who had attested the Will, was not examined and the nature of Ex.B-3 document as it appears does not inspire the confidence in the manner in which it is typed on the stamp paper of Rs.5/- and the right hand thumb impression is at the very bottom leaving substantial place between the thumb impression and the typed matter and the signatures of the witnesses are found on the next page which is not signed by the testatrix. To the extent of the documents of mutation and property tax etc., the learned counsel states that the said documents are of hardly any probative value and cannot divest the title of the plaintiffs. Learned counsel for the respondent/defendant, on the contrary, supports the impugned judgment by contending that the first plaintiff along with his wife was present in Hyderabad when Ex.B-3 Will was executed. He has drawn attention of the trial Court to that part of the evidence where the defendant claimed that first plaintiff was asked to sign Ex.B-3 as the attestor but on account of his wife’s pressure, he did not sign. He further submits that there are no suspicious circumstances as the mother has given her Stridhana properties to her daughter - defendant. According to him, the Will is not disputed by the plaintiffs as no rejoinder is filed by them after the defendant filed written statement based upon the said Will. He also contends that P.W.1 in his evidence has never stated that Will is not true and genuine and only in cross-examination of D.Ws.1 and 2, it was suggested that the Will is forged and created. He, therefore, supported the impugned judgment and urged that the appeal be dismissed. On the basis of the rival contentions and the record of the case, the points that falls for consideration in this appeal are: 1. Whether the defendant has discharged the burden of due execution of the Will – Ex.B-3? 2. Whether the defendant has dispelled all suspicious circumstances surrounding Ex.B-3 Will? 3. Whether the judgment of the trial Court in considering issue No.2 is not vitiated? Point Nos.1 and 2: It is well settled that when the defendant claims exclusive rights to the suit schedule house on the basis of Ex.B-3 Will, as a propounder of the Will, entire burden of establishing due execution, attestation and proof of the Will apart from explaining every suspicious circumstance, is on the defendant. The trial Court has made the said burden of the defendant very light by thinking that the plaintiffs have not denied the Will. The said presumption of the trial Court is clearly unjustified as the defendant came to assert exclusive rights on the basis of the Will for the first time under Ex.A-9 reply notice. A reading of publication issued by the plaintiffs – Ex.A-10 Eenadu daily newspaper dated 07.08.1997 together with suit notice – Ex.A-7 and the plaint allegations in paragraph 3(c) of the plaint would show that the plaintiffs consistently claimed that after the death of Laxmamma it has come to their notice that the defendant in collusion with her husband is trying to alienate the suit schedule house to third parties by forging and creating false documents and misleading the true facts to grab the suit schedule house. Ex.A-7 - suit notice is issued just prior to filing the suit. It further states that since the defendant’s husband is not financially sound, late Laxmamma permitted the defendant and her husband to stay in a part of the suit schedule house and after her death, instead of sharing the property in equal 1/3rd share among the plaintiffs and the defendant, under the influence and guidance of the husband, the defendant is trying to grab the entire property by resorting to illegal methods of forging the documents by creating records and by misleading the true facts and the defendant was called upon to share the suit schedule house properly. The said notice was replied under Ex.A-9 dated 16.08.1997 by the defendant, where there is a general denial of all allegations of the plaintiffs and it is stated that late Laxmamma executed Will dated 16.07.1986, duly notarized it, out of free will and consent and that the said house is mutated in favour of the defendant and the defendant is paying property tax. It was, therefore, denied that the said house is matruka property of late Laxmamma and as such liable for partition. The trial Court has not considered these aspects and the specific allegation of the plaintiffs in all pre-suit documents referred to above is that they were apprehending of the defendant creating documents to grab the property. Obviously, the plaintiffs could not have known the nature of the documents, which they would be confronted with and as such specifically the Will – Ex.B-3 was not referred to. As rightly pointed out by the learned counsel for the appellants/plaintiffs, the defendant himself stated in the written statement in para 4 that plaintiffs’ advocate received Ex.A-9 reply notice on 30.08.1997 and that three days before that suit was already filed by the plaintiffs. Several comments made by the trial Court against the plaintiffs that they have not filed rejoinder or they have not replied to the reply notice and not disclosed about the Will in the plaint are all, therefore, unsustainable as the defendant asserted her right on the basis of the said Will Ex.B-3 for the first time under Ex.A-9 - rely notice and the plaintiffs had knowledge of the same for the first time on 30.08.1997, which is three days after filing the suit. The burden of establishing the Will and removing the suspicious circumstances was, therefore, entirely on the defendant and the said burden had not become any light as understood by the trial Court. The Will - Ex.B-3 is typed in English on a stamp paper of Rs.5/-, by which the testatrix, who is aged 52 years, is said to have executed and bequeathed the property to her daughter i.e., the defendant. The Will has no reference to the husband and the only son of the testatrix nor there is any reference as to why she is executing the Will as there are no recitals as to what prompted her to execute the Will at the age of 52 years. The Will is dated 16.07.1986 and the testatrix lived up to 23.10.1995 almost ten years thereafter. The Will contains only right thumb impression purporting to be that of the testatrix on the first page and contains signature and rubber stamp of a notary public who has attested the said document. Second page of the Will contains only recitals that the testatrix has affixed her thumb mark and each attestor has scribed their signature as attesting witness in the presence of the testatrix at the same time and place. Second page is also attested by the notary public. As mentioned above, there is appreciable gap between the typed matter and the thumb impression on the first page. The said thumb impression said to belong to the testatrix as claimed by the defendant, but there is no other evidence on record produced by the defendant to establish that the said thumb impression was that of the deceased. The defendant states in her evidence that her mother put thumb mark on the Will in her presence and after that her husband put his signature and after that Shamshuddin put his signature on the Will. Husband of the defendant was examined as D.W.2 as attestor of the Will. Thus, the defendant and her husband as D.Ws.1 and 2, supported Ex.B-3 Will in their evidence and the alleged second attestor Shamshuddin was not examined by the defendant. D.W.3, who is examined by the defendant is said to have known the testatrix since July, 1986 and was a client of the advocate notary and was available in the office of the advocate notary, who speaks about the testatrix affixing her thumb mark on the Will in his presence and identified said thumb mark on Ex.B-3 Will. He is, however, not the attestor and is not in acquaintance with D.W.2. Thus, in the absence of either the evidence of the second attestor and the advocate notary or the advocate, who drafted and prepared Ex.B-3 Will, it is very doubtful that the defendant would locate D.W.3 and examined him as a witness when he was merely one of the clients of advocate notary, who by chance was said to be in the office of the advocate notary for some consultation. The trial Court has believed D.W.3 and treated his evidence as if that of an attestor. It is further interesting to notice that the defendant claims that first plaintiff was present when Ex.B-3 Will was executed and was asked to sign as a witness but he refused and went away. D.W.2 also states that first plaintiff was aware of the Will and was present at the time of execution but left when he was asked to sign. D.W.3 also reiterates that P.W.1 was present but he left after execution. However, when we see Ex.A-9 reply notice, the said theory of first plaintiff being present and aware of Ex.B-3 Will is not found in Ex.A-9. Similarly, even the written statement does not state the presence of first plaintiff at the time of execution of the Will and knowledge of the plaintiffs about the Will. The said crucial circumstance would not have been missed in the reply notice as well as in the written statement, if really the first plaintiff was present at the execution and was aware of the Will. The manner in which the defendant has attempted to improve her case during their evidence, therefore, does not inspire the confidence on the defendant’s case. Further, when the deceased testatrix was alive for about ten years after executing Ex.B-3 Will, there is no evidence forthcoming that she has disclosed the execution of the said Will to anybody nor there is any other material to suggest that the execution of Will was to the knowledge of close family members including the plaintiffs and the other close relatives. The Will has been propounded only after the plaintiffs initiated legal proceedings by issuing legal notice Ex.A-7 dated 09.08.1997. No explanation is forthcoming from the defendant as to who was the advocate who drafted the said Will and why he has not been examined. There is also no explanation as to why the advocate notary who attested the document is not examined nor any attempt is made by the defendant to call for the Registrar of notary to establish that such document was executed by the testatrix and was notarized by the advocate notary. The Supreme Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma[1] has categorically held that it is entirely for the propounder to establish that the Will is genuine and true and to remove suspicious circumstances surrounding the Will. Further, in Babu Singh vs. Ram Sahai @ Ram Singh[2], the Supreme Court held as follows: “10. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian Succession Act is required for to be complied with for proving a Will. Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of Will must be proved but actually execution must be attested by at least two witnesses. Attestation must of execution of Will be in conformity with the provisions of Section 3 of the Transfer of Property Act. 'Attestation' and 'execution' connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested. 11. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words 'at least' have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon. 12. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. {See Savithri and Ors. v. Karthyayani Amma and Ors. MANU/SC/8061/2007:AIR 2008 SC 300}” I am, therefore, not satisfied that the defendant has established her exclusive entitlement to the suit schedule house on the basis of Ex.B-3 Will. Therefore, the plaintiffs and the defendant are entitled to equal 1/3rd share and the suit filed by the plaintiffs ought to have been decreed. The Point Nos.1 and 2 are, therefore, answered in favour of the plaintiffs. Point No.3: In view of the discussion in point Nos.1 and 2, point No.3 also deserves to be answered in favour of the plaintiffs. Therefore, the appeal is allowed and there shall be a decree of partition grating 1/3rd share each to the plaintiffs and the defendant as successors of late Manda Laxmamma with regard to the suit schedule house. Accordingly, a preliminary decree for partition shall be passed. With regard to mesne profits for the past and present and to the extent of final decree, the plaintiffs shall approach the trial Court, which shall determine them by causing enquiry and pass appropriate orders to the extent of partitioning the suit schedule house in metes and bounds and allotment of 1/3rd share as above. The trial Court shall appoint an Advocate Commissioner and shall pass appropriate final decree and put the plaintiffs in possession of their 1/3rd share each. The defendant shall bear costs of the suit and this appeal. Accordingly, the C.C.C.A. is allowed with costs. _________________________ (VILAS V. AFZULPURKAR, J) 28th April, 2010 GHN [1] AIR 1959 SC 443 [2] AIR 2008 SC 2485