* HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO + APPEAL SUIT NO. 392 OF 2004 % 17-08-2011 # 1. Smt.Yedla Jogulamma @ Jyothi W/o Sri Jagannadham, Hindu, Aged 65 years, Housewife, R/o D.No.28-9-58, Suryabagh, Visakhapatnam. … Appellant Vs. $ 1. Smt.Chukkakula Kondamma W/o late Mallunaidu, Hindu, Aged about 65 years, R/o Velampeta, Visakhapatnam and 21 others … Respondents ! Counsel for the Appellant: Sri K.Srinivasa Rao, Advocate. Counsel for the Respondents: Sri V.Srinivas, Advocate < Gist: > Head Note: ? Cases referred: 1. AIR 1980 SC 727 2. AIR 1962 SC 567 3. (2005)1 Supreme Court Cases 40 4. AIR 1959 SC 443 5. (1997)7 Supreme Court Cases 110 6. (2008) 4 SCC 530 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.392 of 2004 JUDGMENT: The plaintiff in O.S.No.520 of 1990 on the file of the II Additional Senior Civil Judge, Visakhapatnam is the appellant herein. The suit was one filed for partition of the schedule property into two equal shares and for allotment of one such share to the plaintiff and also for recovery of a sum of Rs.72,000/- from the defendants 1 to 3 towards past profits. The allegations in the plaint go to show that the plaintiff and 1st defendant are the daughters of late Midathada Jogi Naidu, the husband of the 2nd defendant. The 3rd defendant is the son of the 1st defendant. The other defendants are the tenants in the schedule property. The case of the plaintiff is that the schedule property was purchased jointly by the plaintiff and 1st defendant on 27.05.1957 for a sum of Rs.4,264/- and subsequently a house was constructed and the plaintiff is residing with her husband in the northern portion in the ground floor of the upstair building and in the portion next to her in the ground floor. The 2nd defendant was allowed to collect the rents and 3rd defendant started management of the same after he was grown up. The plaintiff raised the dispute with regard to her share but the defendants did not give and plaintiff got issued a legal notice to defendants 4 to 15 calling upon to pay her due share of the rents. The 2nd defendant started claiming that she is the owner of the property. Hence, the suit. The 2nd defendant filed a written statement denying most of the allegations in the plaint and admitting the relationship. The amounts realised from the tenants is also disputed. The fact is that by the time of the execution of the sale deed, the 1st defendant was given in marriage to Chukkakula Mallunaidu, who is no other than the brother of this defendant. As the property i.e. vacant site in Suryabagh was gaining importance and potential value, this defendant had convinced her brother to sell 1st defendant’s gold given to her by the 2nd defendant herself to enable her to acquire the property. The 2nd defendant has thus pooled up the major part of the consideration money from her resources; added the money thus obtained from the 1st defendant and obtained the sale deed in favour of the 1st defendant and the plaintiff who was an unmarried girl at that time with a fond hope of getting a good match for her in a fiduciary capacity, and thus the property was held in her name also in trust for the 2nd defendant. Thus, the vacant site was purchased with the consideration of the 2nd defendant solely and with the money of the 1st defendant as stated above. Thus, the 2nd defendant and the 1st defendant had contributed for the consideration and purchased the property. 2nd defendant had to purchase the property thus to screen the same from the likely and impending onslaughts from business rivals and relatives of her husband. The entire suit schedule property was thus acquired and built by the 2nd defendant and the plaintiff has no capacity. It is admitted that the plaintiff is residing in the northern portion in the ground floor permissively. The allegations that the 3rd defendant assumed management and intended to divide the rights of the plaintiff are also not correct. The allegations of third party is being inducted into possession is also false. The plaintiff being not owner of the property is not at all entitled for the share in the property. It is to be mentioned that this written statement of defendant No.2 was filed on 13.08.1991. The 1st defendant also filed a written statement reiterating the contentions of the 2nd defendant. The 3rd defendant is not a necessary party to suit. The 3rd defendant filed a written statement disowning any interest in the property or the litigation. The 4th defendant filed a written statement contending that he was a tenant and paying rent of Rs.1,000/- per month. After the filing of the suit, the 2nd defendant died and the plaintiff and defendant No.1 are recognized as the legal heirs of 2nd defendant. The defendants 12, 14 to 16 filed the written statement admitting the tenancy. Additional written statement was filed by the 1st defendant that on 23.12.1971 the 2nd defendant executed a registered will and, therefore, the suit is to be dismissed. On the basis of the above pleadings, the following issues have been framed for trial: 1. Whether the suit schedule property is not the joint property of the plaintiff and the 1st defendant? 2. Whether the plaintiff is entitled to ask for partition of plaint schedule property, and if so, to which share she is entitled for? 3. Whether the plaintiff is entitled to recover Rs.72,000/- from defendants 1 to 3 towards past profits? 4. Whether the plaintiff is entitled to claim mesne profits from the defendants, and if so at what rate and for which period? 5. Whether the 3rd defendant is not a necessary party and whether he is entitled for exemplary costs against the plaintiff? 6. To what relief? The following additional issue is framed on 17.04.1998: 1. Whether the second defendant died intestate by executing a registered will dated 23.12.1971? The following additional issues are framed on 21.11.2002: 1. Whether the 4th defendant is a statutory tenant under D.2 late Midathada Simhachalam? 2. Whether the D.4 is a protected tenant liable to evicted under due process of law by Smt.late M.Simhachalam or her legal heirs? On behalf of the plaintiff, P.W.1 was examined and marked Exs.A- 1 to A-6 and on behalf of the defendants, D.Ws.1 to 7 were examined and marked Exs.B-1 to B-62. After considering the evidence on record, the lower Court believed the contention of the 2nd defendant that the properties were acquired by her and she is the owner, but, however, believing the will under Ex.B-47 granted 1/3rd share to the plaintiff. As against that judgment and decree dated 16.08.2003, the present appeal is filed. The points that arise for consideration are: 1. Whether the suit schedule properties are not the joint family properties of the plaintiff and defendant No.1 and as to whether the defendant No.2 is the owner of the property? 2. Whether the will under Ex.B-47 relied on by the 1st defendant is true, valid and binding on the plaintiff? 3. Whether the judgment and decree passed by the learned II Additional Senior Civil Judge, Visakhapatnam is legal and sustainable? POINTS 1 to 3: There is no dispute about the relationship between the parties, though number of documents were marked and several contentions were raised. The contention in this appeal rests upon the fact as to whether the suit schedule property is the joint property of plaintiff and defendant No.1 or not and if the 2nd defendant is the owner of the property, the will Ex.B-47 is true and valid. It is not in dispute that the property was purchased in the year 1957 under Ex.A-2 registered sale deed. Evidently, by that time the plaintiff was a minor and she has no source of income. The fact that the 2nd defendant was doing some business and her earnings is not seriously disputed. The claim of the plaintiff that the property was purchased with her money cannot be accepted. The question, therefore, is whether the property is absolutely purchased by the 2nd defendant intending herself to be the owner of the property or intending to convey equal rights to the plaintiff and 1st defendant. Before appreciating the contention, it is to be made clear that if any nature of transaction is pleaded as nominal or benami, the whole of the transaction has to be taken into consideration and part of the transaction cannot be a nominal one and part of it as a real one. Therefore, in view of the above circumstances, it is to be considered as to whether the sale deed was a nominal one taken by the 2nd defendant intending herself to be as owner of the property. In this case, the learned counsel for the respondent relied upon a decision reported in Bhim Singh (dead) by L.Rs. and another v. Kan Singh[1]. It is also relied on before this Court. The Hon’ble Supreme Court laid down as to under what circumstances a transaction can be said to be benami. The principles laid down are as follows: “The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct, etc.” Keeping in view of the above principle, it is useful to refer to the written statement of the 2nd defendant, wherein it was pleaded as follows: “The fact is that by the time of the execution of the sale deed, the 1st defendant was given in marriage to Chukkakula Mallunaidu, who is no other than the brother of this defendant. As the property i.e. vacant site in Suryabagh was gaining importance and potential value, this defendant had convinced her brother to sell 1st defendant’s gold given to her by the 2nd defendant herself to enable her to acquire the property. The 2nd defendant has thus pooled up the major part of the consideration money from her resources; added the money thus obtained from the 1st defendant and obtained the sale deed in favour of the 1st defendant and the plaintiff who was an unmarried girl at that time with a fond hope of getting a good match for her in a fiduciary capacity, and thus the property was held in her name also in trust for the 2nd defendant. Thus, the vacant site was purchased with the consideration of the 2nd defendant solely and with the money of the 1st defendant as stated above. Thus, the 2nd defendant and the 1st defendant had contributed for the consideration and purchased the property. 2nd defendant had to purchase the property thus to screen the same from the likely and impending onslaughts from business rivals and relatives of her husband.” Therefore, the written statement of the 2nd defendant clearly goes to show that the consideration so far as the share of the 1st defendant is concerned, it came from her side by sale of the gold given to her and with the money of the 1st defendant. The above plea clearly goes to show that the purpose of purchasing the property with the money of the 2nd defendant in the name of the plaintiff was for the reason that the plaintiff was not married and she would get a good match and, therefore, the property was purchased in her name. This clearly goes to show that the intention of the 2nd defendant was to confer benefit on the 2nd defendant and the purchase money so far as the 1st defendant is concerned, came from her only. Therefore, taking into consideration the factors 2 and 4, which are laid down in the above decision, it is not open to the 2nd defendant to contend that the property was purchased benami by her. Merely because she, being the mother, was managing the property and has made some constructions, it will not change the character of the purchase, merely because the 2nd defendant instituted two cases against the tenant and also paying taxes is also not a case to conclude that she is the real owner of the property. Evidently, as the plaintiff was minor and unmarried, the mother might be taking care of her and managing the property as she was also doing business. In fact, even in her evidence also the 1st defendant as D.W.1 specifically stated that her husband is no other than the brother of defendant No.2 and after being convinced by people they sold the gold jewellery and gave the money for purchase of the property though major consideration is said to have been paid by the 2nd defendant. Therefore, there cannot be any valid ground to accept that the property was benami and that the 2nd defendant is the owner of the property. It is to be noted that the 2nd defendant had no children and if she has made any constructions in the schedule property, it could be only with the intention of benefitting both the daughters. Therefore, by advancing money for construction of the buildings will not confer any right on the 2nd defendant to be the owner of the property. The question is as to whether the plea of benami is open at this stage or not in view of the proposition of Benami Transactions (Prohibition) Act, 1988 and as to whether it is prospective or retrospective, is also irrelevant. By applying the principles laid down by the Hon’ble Supreme Court in the decision referred supra, it is quite clear that part of the consideration was from defendant No.1 and the intention was for getting the better match for the plaintiff, who was young and major at that time. Therefore, in view of the above circumstances, the finding of the lower Court on this aspect cannot be sustained, though conflicting and strained reasons were given by the learned Judge. The question, therefore, will be that the defendant No.1 and plaintiff have got equal rights in the property and it shall be divided. This finding will not insist the decision about the will Ex.B-47. But, however, in case it is to be held that the property is not joint, the question will arise as to whether the defendant No.2 died intestate or by executing the will Ex.B-47. It is to be mentioned though the 2nd defendant was alive and the registered will is said to have been executed by her on 23.12.1971 in the written statement filed by the 2nd defendant, it was not referred at all. Furthermore, even though the 1st defendant filed an additional written statement, the particulars of the will and the particulars of the disposition were not at all mentioned. Therefore, if the 2nd defendant has consciously and willingly executed the will Ex.B-47 in the year 1971 long prior to her death, she would have definitely mentioned this in the written statement filed by her in 1991. Added to that, the Court has to consider whether the will has been proved according to law. D.W.1 was not present at the time of the execution of the alleged will and one of the attestors is not alive. The will is said to have been scribed by one Raju and defendant No.2 has fixed the thumb mark as per the evidence of D.W.2. The learned Judge has adopted a strange reasoning to the effect that when the plaintiff has no knowledge about the execution of the will, the suggestion to the attestor or the 1st defendant that the defendant No.2 was not in a sound and disposing state of mind, does not arise. This is a fallacy of reasoning. Evidently, the law is settled that the burden is on the propounder of the will to prove the same and when the plaintiff has no knowledge all the requirements have to be proved. The learned Judge also opined that when a transaction is registered, there is a presumption that the plaintiff had knowledge of the said will. This is also incorrect. The execution of the will is not a conveyance and not required to be registered and evidently though a will is registered, it will not be disclosed. Therefore, mere registration of the will is no guarantee or genuineness. The lower Court also found fault with the plaintiff in not sending the will to an expert, which is again the faulty reasoning. The learned counsel for the respondents relied upon a decision reported in Rani Purnima Debi v. Kumar Khagendra Narayan Deb[2], wherein in para No.23, it was found that “if a will has been registered, it is a circumstance, which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close scrutiny”. He also relied on a decision reported i n Daulat Ram and others v. Sodha and others[3], wherein their Lordships of the Apex Court held that when once the relevant tests of the execution of the will were established then it is for the others, who challenges it as if document obtained by fraud, coercion or forgery to prove it. Therefore, apart from these two decisions, the learned counsel for the respondents also relied upon a decision reported in H.Venkatachala Iyengar v. B.N.Thimmajamma and others[4] with regard to the appreciation of execution of the will and in para No.18, which deals with the requirements of Sections 59 and 63 of the Indian Succession Act to prove a valid will, as under: “…… Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” He also relied upon a decision reported in Ajit Savant Majagvai v. State of Karnataka[5], where in a criminal case it was found that the Court can compare the signatures under Section 73 of the Evidence Act, 1872 and come to an opinion. Therefore, in view of the above contentions raised by the respondent, the question is whether the will has been proved from the evidence of D.W.2. It is to be noted that D.W.1 was not present and the will was not pleaded at the earliest point of time. The valid requirement of a will is that it should be given by the testator that a free will and consciously and the contents should be given by her, read over to her and shall be admitted to be true by her. It is also necessary that she shall witness the attestation and should also state to the witnessing of the attestors. The evidence of D.W.2, on which much reliance was placed, is extracted below: “Chief Examination: I know D1 to D3. I know the plaintiff. D2 is no more. D2 died 4 or 5 months back. D2 is vegetable vendor near my shop in Poorna Market. About 28 years back D2 took me to Registrar Office, near Old Post Office for registration of the Will. Myself and Suryanarayana accompanied her. One document writer by name Raju scribed the Will and D2 affixed her thumb mark on Will. I attested as 2nd attestor. Then D2 was sound and dispose lstate of mind. Ex.B47 contains my signature as 2nd attestor. The 1st attestor died. I could not receive the summons as I am out of station. My wife informed to me about the summons. The D3 informed about the date of adjournment.” His chief examination does not show that the will was scribed to the dictation of the 2nd defendant nor that it was read over and admitted by her. In cross-examination he stated that he does not remember defendant No.2 giving instructions in his presence. He admits that defendant No.2 is illiterate. Therefore, this evidence of D.W.2, which has been relied on by the defendant and accepted by the lower Court does not satisfy any of the requirements of proof of valid will. None of the requirements as laid down in the decision of H.Venkatachala Iyengar v. B.N.Thimmajamma and others were established from the evidence of D.W.2. If the evidence of D.W.2 is ignored, there is no proof of the will Ex.B-47. So far as the comparison of the signatures or the thumb impression is concerned, such course has to be done sparingly. The Judge, who comes to an opinion after comparison, should also disclose his expertise and also give reasons for the conclusions. A mere statement that the Court is of the opinion that the thumb impressions or the signature appears to be similar is not proper since as an expert, whose evidence is to be assessed, the Judge, who is also giving his opinion, should mention the reasons. In this connection, it is useful to refer to the decision reported in the case of Thiruvengadam Pillai v. Navaneethammal[6], the relevant paras are as under: “16. While there is no doubt that court can compare the disputed handwriting/signature/ finger impression with the admitted hand- writing/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. 17. The decision in Murari