THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NOS.556, 1349 & 1436 OF 1992 COMMON JUDGMENT:- All these three appeals arise out of a common judgment in O.S.No.98 of 1984 on the file of the court of Additional Senior Civil Judge, Tenali. Defendant Nos.9 and 10 are the appellants in A.S.No.556 of 1992. Defendant Nos.12 and 13 are the appellants in A.S.No.1436 of 1992 and Defendant No.11 is the appellant in A.S.No.1349 of 1992. The suit one was filed for partition of suit schedule properties. The allegations in the petitions go to show that one U.Neelakanta Narayana was the husband of the first defendant and father of second defendant and defendant Nos.2 to 4 are the sons of second defendant. One Sakhamuri Ademma was the maternal grand mother of Narayana and she executed a will on 21-09-1973 creating a life interest in favour of Narayana and with vested reminder in favour of the plaintiff in respect of plaint “A” schedule property. The will also created absolute rights in respect of items 2-A of plaint “B” schedule and Ademma died in the year 1976. Items 1 and 5 of plaint “B” schedule are the self-acquired properties of Narayana. Narayana and Ademma also executed two wills on 09-04-1974 bequeathing some of the properties to second defendant with life interest and with vested reminder in favour of the children of second defendant as second defendant was accustomed to bad ways. The relationship between 1st defendant and Narayana was not cordial and there was no love lost between him and the family members. Narayana executed a registered will on 06-09-1977 in a sound disposing state of mind bequeathing items 1 to 3 of the plaint “B” schedule properties, which were his self acquired properties in favour of the plaintiff. Therefore, the plaintiff has become entitled to the entire plaint “A” & ”B” schedule properties. There was a wide rumour in the village in the month of May-1978 that Narayana was murdered and the offence was kept in secrecy and second defendant gave a publication on 07-06-1978 to the effect that his father Narayana was missing. All the family members and the villagers felt that Narayana was murdered. The defendants 1 and 2 have alienated portion of plaint “A” & “B” schedule properties stating that Narayana died and they have got rights in the said properties after his death. The alienation was in the year 1978 alleging that he died in the middle of 1978. The defendants have no right to alienate the property and the plaintiff gave a notice to the father of defendant No.10 when item 2-B of plaint “B” schedule property was attempted to be alienated in 1981. A reply was given contending that the defendants 1 and 2 have acquired the rights in the property by virtue of the will dated 19-03-1979 purported to have been executed by Narayana. The said will is not a true one and created by impersonation. Whereabouts of Narayana are not known and declared to be missing in June-1978. The theory of execution of the said will is false. The registered will executed by Narayana dated 06-09-1977 is only and the last will. The defendants 1 and 2 have executed a collusive lease deed in favour of defendant Nos.5 and 6 and also defendant Nos.1 to 4 sold item 1-A to 8th defendant on 05-03-1983 under Ex.A-12. They have exchanged the property with defendant No.9 with regard to item 2-A on 18-03-1982 under Ex.A-13. They also sold property to defendant No.4 under Ex.A- 14 on 26-04-1982 and also sold the property to defendant No.11 on 26- 08-1982 to an extent of Ac.1.00 under Ex.B-1 corresponding to Ex.A-15. Defendants 1 to 3 sold Ac.1.00 in favour of defendant Nos. 12 and 13 under a registered sale deed dated 26-08-1982 corresponding to Ex.B- 13. Defendant No.9 and 10 claims items 2-A & 2-B in plaint “B” schedule and 5th defendant claims Ac.1.00 in item 3-B of plaint “B” schedule and defendant Nos.12 and 13 claims item 3-A of plaint “B” schedule which is an extent of Ac.1.00. The plaintiff claimed all the alienations are not valid and binding and consequently filed the suit for partition and possession and for profits. As the defendants have taken a plea that the suit was premature as there is no proof of death of Narayana and if a presumption is to be drawn, it shall be for seven (7) years under Section 108 of the Indian Evidence Act,1872 and consequently by virtue of amendment in I.A.No.1881 of 1986 it was allowed on 04-07-1989. The subsequent event of completion of seven (7) years from 1978 is to be taken note of by the Court. Defendant Nos.1 to 4 remained ex parte. Defendant Nos.5, 6, 8 filed written statement supporting their contentions, which is not very much relevant for a decision in these appeals. The substance of the contention of the appellants herein is that the suit is premature; the alleged gift deed of Ademma and the will said to have been executed by Narayana are not admitted and the plaintiff is put to strict proof of the same. The further allegation that Narayana was not having good relationship with the family members and consequently he has executed the will in favour of the plaintiff is also disputed as being improbable. The defendants have set up a claim that Narayana was alive even by 19-03-1979 and in a sound and disposing state of mind he executed a will and thereby the first defendant acquired the absolute interest over the suit schedule properties. The plaintiff is neither entitled for declaration nor possession or mesne profits. The written statement refers to the purchase of the properties for valuable consideration as mentioned above. On the basis of the above pleadings, necessary issues have been framed and after considering the material evidence on record, the learned Senior Civil Judge believed the will in favour of the plaintiff and disbelieved the claim of the will dated 19-03-1979 in favour of the first defendant and decreed the suit holding that the plaintiff has got title to the plaint “A” schedule property and entitled for recovery of possession of the property and the defendants 1 to 4 shall pay the mesne profits from 21-07-1986 to 08-08-89. It was further held that the plaintiff is having title to items 2-A & 2-B of the plaint “B” schedule and the defendant Nos.9 and 10 have to deliver the same to the plaintiff and they have to also pay the mesne profits. The lower court further declared that the plaintiff will be entitled to only a half share in items 1-A and 1- B and 3-A & 3-B of the plaint “B” schedule properties and further decreed that items 1-A and 1-B of the plaint “B” schedule properties have to be divided into two (2) portions by clubbing and the plaintiff is entitled to a share. The court also granted the mesne profits for the properties for which the plaintiff is entitled. It appears that some of the defendants and plaintiff have compromised and though an appeal was filed by defendant No.8 in A.S.No.1320 of 1992 in respect of items 1-A of plaint “B” schedule property, it was settled out of court. During the pendency of appeal, on behalf of the appellant in A.S.No.1349 of 1992 an additional evidence was sought to be filed (ASMP No.1886 of 2011), which is the will dated 19-03-1979 said to have been executed by Narayana in pursuance of the first defendant is said to have acquired rights and the earlier will relied on by the plaintiff is said to have been cancelled. The said application (ASMP No.1886 of 2011) is opposed by the plaintiff questioning that there are no bona fides. Now the points that arise for consideration are:- 1. Whether the suit is premature and is liable to be dismissed? 2. Whether Narayana can execute a will with regard to joint family property without their consent and whether the said will is valid and true? 3. Whether the appellants have got a right to question the said wills and entitled for the properties purchased by them? 4. Whether there are reasonable and sufficient grounds to receive additional evidence? POINTS:- In these appeals though during the trial several contentions were raised by the other defendants, the court is concerned only with regard to alienations in favour of defendant Nos.9 to 13. So far as the first contention of the appellants with regard to maintainability of the suit as premature is concerned, it is no doubt true that a presumption of death under Section 108 of the Evidence Act,1872 only can be drawn after a period of seven (7) years if he is not heard of but there is no presumption that the person died on a particular date. Though several decisions are cited by the learned counsel for the appellants, there cannot be any dispute about the legal proposition and there cannot also be any dispute about the fact that the suit was filed before the expiry of seven years from the date when Narayana is said to be missing. That was very reason as to why an amendment was sought and decree of the court also fixes the relief after the period of expiry of seven years. Though technically the case is based on a presumptive death, the fact remains that defendant Nos.1 to 4 believed that Narayana died and his whereabouts are not known for that reason only. Therefore, it is quite clear everybody supposed and presumed that Narayana died in 1978 and a declaration in fact was given by second defendant about his missing. Evidently, even till this day, Narayana did not appear and there is no proof of his death on a particular date. Therefore, it can only be a case where the presumption has to be drawn that Narayana died. It is rebutable presumption and in fact none of the defendant Nos.1 to 4 are seriously challenging the above fact of death of Narayana. The question is as to whether the suit has to be dismissed as being premature. In this connection, it is useful to refer to a decision reported in Vithalbhai (pvt) Ltd vs. Union of India ([1]). The above decision clearly shows that merely a suit is premature, it cannot be dismissed and the court has to keep in mind several circumstances including the acts of the defendants to create a cloud over the rights of the plaintiff and also the disadvantages the plaintiff suffers. The objection though taken a decision has to be invited promptly. In this case, evidently, on the strong belief that Narayana died and defendant Nos.1 to 4 got rights in the property started alienating the same detrimental to the rights of the plaintiff and therefore, it is a case where the conduct of the defendants is definitely a case vitiating the rights of the plaintiff, which is entitled to enforce as a cause of action on the basis of the will even at a latter stage. It is not in dispute that the sale deeds executed by defendant Nos.1 to 4 in 1982 refers to the will dated 19-03-1979 and proceeded on the premise that Narayana died evidently by then. Therefore, even after 1980 defendant Nos.1 to 4 felt that Narayana died. Therefore, in view of the above circumstances, the contention is not valid and in fact when I.A.No.1881 of 1886 was allowed for drawing a presumption of death, revision was filed in the High Court and the order was confirmed permitting the amendment and further observed that for the purpose of mesne profits, the suit shall be deemed to have been instituted only on 21-07-1986. Therefore, by virtue of the amendment and the subsequent events and as the order in I.A.No.1881 of 1986 as having become final and the High Court having held that the suit shall be deemed to have been instituted on 21-07-1986, the presumption can validly be drawn and it is not been rebutted by the appellants and consequently the contention has been rightly rejected by the lower court taking into consideration the evidence on record. The members of the family who are likely to be affected by the wills and the rights claimed by the plaintiff have neither deposed before the court nor gone into the box. The defendants also have not made any attempt to summon them to prove the entitlement of the defendant Nos.1 to 4 to convey the property. So far as the wills executed by Ademma are concerned, she is the maternal grand mother of the plaintiff and brother of Narayana. Her rights in the property conveying wills are not seriously disputed. The evidence of PWs.1 to 3 clearly proves the execution of the will and also the codicil which was accepted by the lower court. The persons from whom the appellants have derived title have not disputed the wills nor specifically denied the same and consequently it has to be held that the appellants cannot say that there is no proof of the wills. It is not in dispute that under original will item No.1 was given to Narayana who is her brother and after his death, it should go to plaintiff and originally bequeathing item No.2 to her sister after the life time of Narayana but however by the codicil it was also given to the plaintiff. She also bequeathed item 2 of “B” schedule to Narayana and the entire “A” schedule was given to the plaintiff. Under the codicil, the property given to one Symala Devi the sister of the plaintiff was also given to the plaintiff. The evidence of PWs.6 and 11 also proves the above wills. Therefore, the claim of the appellants about the rights in the property through Ademma and the rights of Narayana under the will cannot be disputed. The next question to be decided is whether the will said to have been executed by Narayana in favour of the plaintiff conveying his property to the exclusion of his wife and children is valid and whether there are any suspicious circumstances. In this connection, the learned counsel for the appellants contends that the original of the will was not produced and the lower court has relied upon the secondary evidence of Ex.A-20 which was the extract of the registers of the wills maintained by the Registrar and in the absence of original, the court should not rely upon it. He relied upon a decision reported in Ramesh Dutt Salwan Vs. The State and another([2]). In this connection, it is to be noted that the appellants herein are third parties to the will. The persons who are affected by such will, without dispossession as already stated earlier, have not chosen to specifically deny the execution of the will. In such circumstances, the registration of the will assumes a valid execution and the presumption also can be drawn. Evidently, the plaintiff could not have got the custody of he will for several reasons and the will Ex.A-20 is produced from the public office and therefore it can be relied upon. Added to that, it is not in dispute that a notice Ex.A-6 was given on 28- 09-1981 to the defendant Nos.1 and 2 and another person Bhaskara Rao who is said to be in possession of some of the properties and a reply Ex.A-7 was given by an Advocate on 15-01-1982 after a long time on behalf of the tenant saying that Narayana executed a will on 19-03- 1979 and in that will the alleged will dated 06-09-1977 has been cancelled. Therefore, this clearly goes to show that the existence of the will dated 06-09-1977 is admitted, but, however the plea of cancellation by a subsequent will is claimed. The said notice refers to the rights of the defendant Nos.1 and 2 and in fact this reference was also made in the plaint about the falsity of the will. That being so, when defendant Nos. 1 and 2 have not denied the said will, any challenge made by the appellants is futile. In fact the sale deed Ex.B-13 refers to the right derived by the defendants by virtue of the will dated 19-03-1979. Ex.A- 15 the sale deed in favour of defendant No.11 also refers to the same will. Therefore, when the legal notice admits the existence of the will, no further proof is necessary. As per the will, items 1 to 3 of the plaint “B” schedule was given to the plaintiff. In fact, the contesting defendant (defendant No.8) also has taken a plea that the will dated 06-09-1977 (Ex.A-20) was cancelled by the subsequent will dated 19-03-1979. PW.7 who is the attestor and PW.10 who is the scribe have deposed about the due execution of the will. In fact, the thumb impressions were sent from the original of the registers and the expert opined that it belongs to Narayana. Therefore, I have no hesitation in holding that the challenge made by the appellants is not correct and there is due proof and execution of the will Ex.A-20 and non-filing of the original is also not a ground to reject the will. An attempt was also sought to be made by the appellants about the un-natural dispossession said to have been made by Narayana excluding his children and giving the property to the plaintiff, who is the sister’s son (nephew). It is needless to say that by such dispossession, effected parties are defendant Nos.1 to 4 and they have kept quite without any demur. Therefore, the claim of the plaintiff based on Ex.A-20 will is genuine and only the question to be decided is whether this will was cancelled by the subsequent will dated 19-03-1979. So far as this will is concerned, it is also said to be a registered will. Parties have gone to the trial about the burden of proof and the nature of the evidence is required. The said will though said to have been registered was not summoned during the trial. One can understand if the existence of the will is not known, but it is a specific plea that the rights derived by the defendants under the will dated 19-03-1979. It also transpires that at the instance of the plaintiff on the alleged will, the thumb impression from the register maintained by the Registrar was sent and the expert PW.13 stated that finger print does not belong to Narayana. To over come the comment of the lower court that the original will is not filed, the present application is filed for an additional evidence. Evidently, the grounds mentioned for receiving of the additional evidence are not acceptable. When the plaintiff could send the finger print for expert from the Register of the Wills maintained by the Registrar like Ex.A-20, the appellants could have also summoned the said will and marked a copy of it. It is needless to say that the burden is on the defendants to prove the same as the said will was propounded by defendant Nos.1 to 4 by alienating the properties. At this stage, the application to receive the additional evidence by filing the said will is misconceived and it does not attract any of the requirements under Order XVI, Rule 27 CPC to allow such application, because knowingly and for the best reasons known to the appellants the will was not summoned and produced. Therefore, the application deserves to be rejected as rightly contended by the plaintiff. Consequently, the application ASMP No.1886 of 2011 has to be rejected. So far as the items 2-A & 2-B of plaint “B” schedule concerning the defendant Nos. 9 and 10, it is their case that defendant No.9 obtained an exchange deed from defendant Nos.1 to 4 under Ex.B-13 and from that a portion of item 2-A was conveyed to defendant No.9 and subsequently defendant No.9 alienated the same in favour of the defendant No.10 under Ex.B-5 sale deed preceded by an agreement under Ex.B-11. Evidently, these properties are the properties which Narayana got from Ademma and defendant Nos.1 to 4 have no title to convey on the ground of legal necessity and by virtue of the will of Narayana, the plaintiff is entitled to the said property when the will is upheld. Therefore, the defendant Nos.9 and 10 cannot claim any right in the property and consequently A.S.No.556 of 1992 has to be dismissed. So far as items 3-A which is Ac.1.00 of land and 3-B another Ac.1.00 of land in “B” schedule are concerned, defendant Nos.1 to 4 said to have conveyed item 3-A of “B” schedule to defendant No.11 under a registered sale deed Ex.B-12 and item 3-B was conveyed to defendant Nos.12 and 13 under Ex.B-13. It is the case of the plaintiff that these two items of the property, which are items 1 and 3 of plaint “B” schedule are concerned, they are said to be self acquired properties of Narayana. It is not shown as to why Narayana got these properties. The lower court from the material evidence on record came to a conclusion that Narayana has got only agriculture as an avocation and he was said to be holding some property and the lower court has drawn a presumption that these properties were succeeded by Narayana from the joint family and therefore the 2nd defendant will be having half share in these items and what could be conveyed by the defendants is only the half share. There is also no proof or necessity of alienating these properties for family benefit. Taking that view which appears to be right, the lower court has confined only to the share of second defendant and the share of the Narayana has been excluded. It is sought to be canvassed by the learned counsel for the appellants the execution of the will in a joint family is not valid when there is no division. Execution of a gift deed is quite different from executing a will about the dispossession of the rights of a person in the joint family. In fact these are contentions which are to be raised by defendant Nos.1 to 4 and when they have chosen to stay away from the suit and when there is no allegation or proof of collusion between plaintiff and defendant Nos.1 to 4, it is difficult to sustain the argument of the appellants. The learned counsel for the appellants relied on a decision reported in V.K.Thimmaiah and others Vs. Smt. V.K.Parvathi and others ([3]) whereunder it was held that when a will was executed by a karta of a family showing that the properties are self acquired and dividing them between the heirs without their consent, in such circumstances the will was said to be not binding on the other co-parceners. In this case it is not like that. Share of Narayana is only found to be legally conveyed under the will. Therefore, the lower court has rightly held that the alienation with regard to items 3-A & 3-B of “B” schedule is only valid to the extent of half share of second defendant and others and the plaintiff will be entitled to the other half share of Narayana by virtue of the will. Therefore, for all the aforesaid reasons, I do not find any infirmity in the judgment, which is well considered and much of these points sought to be canvassed by the appellants have been sufficiently and with reasons considered and on fact. There is no material to come to a different conclusion. Accordingly, all the appeals deserve to be dismissed. The points are accordingly answered. In the result, all appeals are dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 27-09-2011 TSNR [1] 2005(4) SCC 315 [2] AIR 1989 NOC 47(DELHI) [3] AIR 2003 KARNATAKA 245