THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR S.A.No.234 of 1999 Date: 12.8.2010 Between: Yalla Dorayya Naidu. ………..Appellant/plaintiff. And Kola Satti Reddy. ………..Respondent/defendant. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR S.A.No.234 of 1999 JUDGMENT: This second appeal is directed against the judgment and decree dated 21.10.1998 passed in A.S.No.24 of 1993 on the file of the Senior Civil Judge, Amalapauram, confirming the judgment and decree dated 21.9.1992 passed in O.S.No.43 of 1986 on the file of the Principal District Munsiff, Amalapuram. The parties hereinafter will be referred to as they are arrayed before the trial Court. The brief facts of the case are as follows:- Originally, the suit schedule property belonged to one Polumari Narayana Murthy. Mandapalli Satyavathi (P.W.2) is the daughter of Narayana Murthy. Narayana Murthy had a wife, son & four other daughters and one among them is a widow. The plaintiff claims to have purchased the property under a registered sale deed dated 11.12.1985, marked as Ex.A1, from Mandapalli Satyavathi. Mandapalli Satyavathi claims that her father Narayana Murthy executed a Will on 15.8.1940 in Ex.A3 and bequeathed the suit schedule property to her. The case of the defendant is that he purchased the suit schedule property by way of a registered sale deed dated 30.1.1986 vide Ex.B2 from another daughter and son of Narayana Murthy. The entire case depends on the issue whether Ex.A3 Will is genuine or not. On behalf of the plaintiff, the plaintiff himself was examined as P.W.1, Mandapalli Satyavathi was examined as P.W.2 and Medida Suryanarayanamurthy & S.Surya Prakasarao, who are said to be the sons of the attesters, were examined as P.Ws.3 & 4. P.W.3 is the Village Administrative Officer of the Village and P.W.4 is the son of the attester of Ex.A3. On behalf of the defendant, the defendant himself was examined as D.W.1 and D.Ws.2 to 6 were examined and marked Exs.B1 to B6. The learned Principal District Munsiff, on appreciation of the oral and documentary evidence, came to the conclusion that there are suspicious circumstances surrounding the execution of Will and that the defendant raised the thatched shed even prior to the alleged date of encroachment and that the plaintiff’s vendor has not been in possession of the suit schedule property and that the Will has not seen the light of the day for about 40 years and that any other document containing the signatures of the attesters have not been filed into the Court for the purpose of comparison with the signatures of attesters on the Will. It is also held that P.W.4 is related to P.W.1 and that the signatures of the father of P.W4 appearing as one of the attesters in Ex.A3-Will has been disputed by the defendant and no steps have been taken to prove the signatures of the testater or that of the attesters and that no presumption can be raised that Ex.A3-Will is executed by the testater when he was in sound and disposing state of mind. Holding that the plaintiff failed to prove that Ex.A3-Will is true and genuine binding on the vendors, the trial Court dismissed the suit. When the matter was carried in appeal, the appellate Court also observed that D.W.3-Vega Mhalakshmamma admitted that originally the property belonged to Narayana Murthy and that P.W.2-Mandapalli Satyavathi D.W.3- Mahalaxmamma and three sisters Pilli Subbayamma, Pilli Chandramma, Gummaluri Puchamma are the daughters and Maridayya is the son of Naryanamurthy & Parvathamma. The appellate Court also observed that none of the documents containing the signatures of the father of P.W.4 were produced and that P.W.4 is related to P.W.1, and that there is no compliance of Section 61 of the Indian Evidence Act. It is also observed that the presumption under Section 90 of the Indian Evidence Act is not a mandatory presumption and all the facts and circumstances have to be taken into consideration before raising the presumption. It is also observed that the propounder of the Will has to remove all the suspicious circumstances surrounding the execution of the Will. The appellate Court also observed that there is no material to show that there was any strained relationship between Narayana Murthy and his children other than P.W.2- Satyavathi and that when a widow daughter was depending upon him, there was no reason to bequeath the suit schedule property in favour of his 5th daughter. The appellate Court has also given valid reasons for disbelieving Ex.A2-tax receipt on the ground that the receipt is of the year 1975, but P.W.1 did not work as Village Munsiff during the year 1975 and therefore, he was not expected to issue tax receipt in the year 1975. Ultimately, the appellate Court also agreed with the findings of the trial Court and dismissed the appeal. Challenging the same, the present Second Appeal has been filed. The learned counsel for the appellant/plaintiff submitted that Ex.A3-Will is a 30 years old document and that both the Courts below went wrong in not raising presumption as required under Section 90 of the Indian Evidence Act. It is also his submission that admittedly the attesters of the Will were not alive when the mater came to the Court and that there was no opportunity to the plaintiff to examine those attesters, and, therefore, he had examined P.W.4 who is the son of the attester and that P.W.4 had categorically identified the signature of his father i.e one of the attester and that when a son has identified the signature of his father, the courts ought to have believed the evidence of P.W.4 and there is nothing on record to disbelive the testimony of P.W.4. His submission is that, had the Courts below considered Section 68 of the Indian Evidence Act coupled with the evidence of P.W.4, the courts would have come to conclusion that there are no suspicious circumstances surrounding the execution of Ex.A3-Will. It is also his submission that P.W.2 is the fifth and youngest daughter of Narayanamurthy, and, therefore, out of love and affection towards his last daughter Narayanamurthy in all probabilities might have executed the Will bequeathing a small extent of Ac.0.25 cents and there are no suspicious circumstances as held by the Courts below. It is also argued that it is not the case of the defendant that the father of P.W.4 is not the attester of the Will. Per contra, Sri M.V. Suresh, learned counsel for the respondent/defendant submits that admittedly Narayana Murthy was having wife, son and four other daughters and one among was widow daughter and there is nothing on record to show that Narayana Murthy had any other properties or that he had given any properties to the wife, son and other daughters and there was no special reason to exclude his son, wife and other daughters. It is also his submission that P.W.2 when cross-examined had tried to support her case while saying that some amount was given to her mother, brother and other sisters in lieu of bequeathing the suit schedule property to her, but this plea was not taken previously by the plaintiff or even in her chief examination. The main submission of the learned counsel for the respondent is that when both the Courts below have concurrently held that Ex.A3-Will is surrounded by suspicious circumstances, the finding of fact cannot be disturbed in the second appeal. It is also his submission that the Will, said to have been executed in 1940, has not seen the light of the day for several years and that P.W.1 who is the purchaser of the property worked as a Village Administrative Munsiff and that he seems to have fabricated the tax receipts and the same is not believed by the Courts below. It is also his submission that P.W.2 had not taken any steps to mutate her name immediately after the death of her father and in the above circumstances, no substantial question of law arises in the appeal and there is no need to disturb the findings of the courts below. Admittedly, the substantial questions of law, formulated at the time of admission of this appeal, are as follows:- “1. Whether the courts below are not erred in drawing the presumption under Section 90 of the Indian Evidence Act with regard to Ex.A3-Will, a document of 30 years old? 2. Whether the courts below are not erred in coming to the conclusion that the requirements contemplated under Sections 68 and 69 of the Indian Evidence Act are not established in the facts and circumstances of the present case? 3. Whether the courts below did not commit any error in not accepting the evidence of P.W.4, who identified the signature of his father, who is one of the attesters of Ex.A.3-Will, and coming to the conclusion that the requirements of Section 68 of the Indian Evidence Act is not established? and 4. Whether the courts below did not commit any error in not drawing the presumption under Section 90 of the Evidence Act in the light of un-impeachable evidence given by P.Ws.2 to 4?” Now it has to be seen whether the evidence on record reveal that the findings of Courts below are perverse and not based on evidence. It is settled law that concurrent findings of the courts below on facts cannot be disturbed until and unless those findings are perverse. It is not in dispute that the property originally belonged to Narayana Murthy. P.W.2 who is a vendor of the plaintiff is 5th daughter of Naryanamurthy. It is also not in dispute that Naryanamurthy had wife, son and four other daughters as on the alleged date of execution of Ex.A3-Will. It is settled law that for the purpose of proving a Will, at least one of the attesters must be examined. Admittedly, in this case, the attester was not alive when the matter came to the Court. Section 69 of the Indian Evidence Act reads as follows:- “Proof where no attesting witness found:-If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person.” As seen from the pleadings and the evidence, the execution of Ex.A3-Will has not been admitted. When the execution of Will is not admitted, the question of admitting the signature of the attester does not arise. Of course, the plaintiff has examined as the son of one of the attesters as P.W.4. Normally, Son will be well acquainted with the signature of his father and his handwritings. But, P.W.4 has not produced any document containing the signature of his father to enable the Court to compare the signature of his father with that of the signature available on Ex.A3. Section 73 of the Indian Evidence Act, 1872 reads as follows:- “Comparison of signatures, writing or seal with others admitted or proved:-In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writings, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figure for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger impressions.” For the purpose of proving a signature, admitted signatures of that person have to be made available to the Court. It is not the case of P.W.4 that the signatures of his father are not available with him or in any other official document. Had he produced any other document containing the signature of his father, the Court would have been in a position to compare the signatures with the signature available on the Will. Learned counsel for the respondents submits that the version of P.W.2 that some amount was paid in lieu of execution of the Will by Narayana Murthy to his wife, son and other daughters cannot be accepted at this stage. The Courts below have also given valid reasons for not accepting the tax receipt in Ex.A2. Admittedly, P.W.1 was working as Village Munsiff during 1985 and there is nothing on record to show that he worked as Village Munsiff in 1975 when Ex.A2 is said to have been issued. Moreover, the Courts below have also came to the conclusion that the defendant was in possession of the property, of course though entered as a tenant and that he had constructed a thatched shed in 1981. In the circumstances that no special reasons have been given for executing the Will excluding wife, son and other daughters of Narayana Murthy. The very fact that the Will has not seen the light of the day for several years is one of the strong suspicious circumstance. It appears that the Courts below have given cogent reasons for holding that there are surrounding suspicious circumstances around the execution of the Will. Now it has to be seen whether presumption under Section 90 of the Indian Evidence Act is available as far as Ex.A3 is concerned. Section 90 of the Indian Evidence Act reads as follows:- “Presumption as to documents thirty years old:- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation:- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This Explanation applies also to Section 81.” The main factor to be considered before raising a presumption under Section 90 of the Act, is whether the document has been produced from the proper custody. Proper custody is the condition precedent for drawing presumption under Section 90 of the Act. As seen from the facts and circumstances of this case, when there is nothing on record to show that the Will was shown to others immediately after its execution or at least after the death of Narayana Murthy in or around 1966 and when it had not seen the light of the day till the date of filing of the suit it cannot be said that the Will was produced from proper custody. It has to be seen that even on the date of filing of the original suit according to P.W.1 the Will was in the custody of her mother and she had no knowledge about the same till her mother informed about the Will. No reasons are forthcoming as to why the mother of P.W.2 did not reveal about the execution of Will by her husband Narayana Murthy. In the above circumstances, it appears that the courts below are justified in not drawing presumption under Section 90 of the Indian Evidence Act. In view of the discussion, it is clear that there are no merits in the appeal or no substantial question of law arises. Before parting with this judgment, it has to be made clear that admittedly as deposed by P.W.2 herself she has sold the suit schedule property to the plaintiff and it is not in dispute that P.W.2 is having 1/6th share in the suit schedule property, and, therefore, the plaintiff also appears to be entitled to the share of P.W.2 i.e., to the 1/6th share in the suit schedule property. Subject to the above observation made supra, this appeal is disposed of. However, in the circumstances, no order as to costs. _____________________________ JUSTICE B. CHANDRA KUMAR Date:12.8.2010. mrb