IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1689 OF 2001 BETWEEN: Ravikanti Jagannadha Rao and another …APPELLANTS AND Ravikanti Atchyuta Rao (died) and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 1689 OF 2001 JUDGMENT: The 1st defendant in O.S.No. 32 of 1994 on the file of the Senior Civil Judge, Vizianagaram, is the appellant herein. 2. The brief facts of the case are that Ravikanti Venugopal Rao was the father of the deceased 1st plaintiff and the defendants. Their mother was Laxmi Narsayamma. The plaint A & B Schedule properties are the ancestral properties. The father of the defendants and 1st plaintiff died when they were young age and there was no possibility to educate the sons from the income of the schedule properties as they were not at all fetching any income. Their mother Laxmi Narasayamma, who possessed of gold ornaments, brought up her sons and educated them by disposing of her gold ornaments. The defendants 1 & 2 could not get the education, but the 1st plaintiff was educated, has good merit and was employed in the Ministry of Science and Technology and was residing at different places. He was helping the 1st defendant and the family and for development of the plaint schedule properties. All the sons have executed a registered sale deed on 06-04-1955 in favour of their mother in respect of the schedule properties and she raised Mango Tope in the plaint ‘A’ schedule properties and spent the income for the benefit of the family. During her life time, she executed a Will on 13-07-1973 bequeathing the plaint ‘A’ schedule properties in favour of all the three sons equally and the plaint ‘B’ schedule house was divided into three shares, but the share of the 1st defendant was given to the 1st plaintiff towards the discharge of the debts payable to him and thereby 1st plaintiff got 2/3rd share and the 2nd defendant has got 1/3rd share. The Will has come into existence after her death in the year, 1986. The 1st plaintiff has been demanding the defendants to partition and they have not co-operated. The 1st defendant has also enjoyed the property and realised the income. Hence the suit was filed for partition of plaint ‘A’ schedule properties into three shares and for partition of the ‘B’ schedule house into three shares and the allotment of two shares to the plaintiff and eviction of the defendants and for profits. 3. The 1st defendant filed a written statement admitting the relationship. The fact that the properties are ancestral properties and not very much income fetching is also not disputed. The allegation that the gold ornaments of the mother were pledged and the family was brought up is not correct. It is the 1st defendant that has educated the 1st plaintiff and the 2nd defendant. The alleged Will, which is said to have been executed by the mother is not true. The family members were satisfied with the services of the 1st defendant and from the source of money derived from his maternal grandmother, he raised a Mango Tope in items 1 to 3 of the plaint ‘A’ schedule property and therefore, he is the owner of the Acs.25-50 Cents, which are items 1 to 3. The other brothers never objected to the enjoyment of the property and the rights of the 1st defendant in the above items and therefore, he has perfected his title by adverse possession. The document, dated 06-04-1955, in favour of mother is sham and nominal sale deed. As the 1st defendant for the benefit of the family and for the education of the other brothers has borrowed and apprehended legal complications, all the brothers have executed the nominal sale deed. Therefore, it is not valid and it was never acted upon. The Will said to have been executed by the mother is not valid and not true and she did not derive any title to the properties. Therefore, according to him, the plaint ‘A’ schedule items 1 to 3 are not liable for partition and the mother has no right to execute the Will and the sale Deed in her favour is only sham and nominal. Therefore, he pleaded for the dismissal of the suit. 4. The 2nd defendant filed his written statement supporting the claim of the plaintiffs about the execution of the sale deed and the validity of the Will. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the plaintiffs are entitled for the partition of the plaint ‘A’ schedule property as prayed for? 2) Whether the plaintiffs are entitled for the partition of the plaint ‘B’ schedule property as prayed for? 3) Whether the plaintiffs are entitled for future profits as prayed for? 4) To what relief? 6. On behalf of the plaintiffs PWs. 1 and 2 were examined and marked Exs.A-1 to A-14. On behalf of the defendants DWs.1 to 4 were examined, and marked Exs.B-1 to B-50. 7. After considering the evidence on record, the learned Senior Civil Judge, Vizianagaram, accepted the Will of the mother and her rights under the sale deed and passed decree for partition and eviction. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the Lakshmi Narsayamma is the owner of the plaint schedule properties and whether the Will executed by her is valid and binding on the defendants? 2) Whether the 1st defendant is the owner of items 1 to 3 of the plaint ‘A’ schedule properties? 3) Whether the judgment and decree passed by the learned Senior Civil Judge, Vizianagaram, is legal and sustainable? 9. POINTS: The contention of the counsel for the appellant is that the sale deed Ex.A-1, which was admittedly executed by the brothers in favour of the mother on 09-04-1985, was never intended to be acted upon, it was only a nominal document to save the properties from the creditors. According to him, at that time, the family was indebted to several persons and litigation was there and therefore, there is a threat from the creditors. This contention of the appellant does not appears to be probable. Evidently, during the year 1953 and earlier, he has executed several sale deeds Exs.B-17 to B-25 alienating several properties to third parties. Therefore, at that time, the 1st defendant, who was admittedly looking after the family, was selling the property may be for discharge of the debts or otherwise. No member of the family has objected for the same. Therefore, there is every possibility of the sale deed being executed in the name of the mother also for the expenditure or the amount parted by her for the benefit of the family. The admitted fact is that the revenue records and the mutation clearly continued to show that the mother of the 1st plaintiff and defendants 1 & 2 was the owner of the property. If really the property was never intended to be acted upon, there is no reason as to why a mutation has to be effected. So also the 1st defendant has not filed any document to show that in respect of the sale deed, the cultivation accounts or payment of cyst was done in the name of the members of the family and not in the name of the mother. There is no reason as to why such best evidence is not produced. Even according to the case of the 1st defendant, the mother was possessed of the gold ornaments though the 1st defendant claims to have worked for the benefit of the family, it does not mean that the purpose of executing the sale deed in favour of the mother is to save the same from creditors. The conduct and the admission of the 1st defendant clearly goes to show that the sale transaction in favour of the mother is real. The verification certificates under the Land Ceiling Act, which are Exs.B-26 to B-30 relied on by the counsel for the 1st defendant also has no relevancy since there is no proof that the brothers have also signed the declarations. There is also no material to show that the revenue authorities have not recognized the sale Ex.A-1 in favour of the mother. Baring interested testimony of the 1st defendant, there is no other material to show that Ex.A-1 sale deed is nominal. 10. Evidently, the effort of the appellant to challenge the sale deed is for the reason if sale deed is held to be valid and enforceable, then his rights in B-Schedule property will be lost as the mother will have got a title to the properties and the Will executed by her if believed, will prejudice the contention of the appellant. Of-course if the Will is not proved, then as rightly found by the lower Court, it makes no difference as to whether the sale deed is nominal or really intended to be acted upon. 11. So far as the claim of the appellant that item Nos. 1 to 3 of the A-Schedule are concerned that they were allowed to be enjoyed by him exclusively and he developed a Mango Tope and he is entitled exclusively for the said property, evidently, there is no document evidencing a family arrangement between the brothers. In the absence of such an arrangement, a member of the joint family will not get any rights in the property without any document. Assuming to be that the 1st defendant has developed a Mango Tope, evidently it is from the income derived either from the property of the mother or from the joint family nuclears since the defendant has no other source of income. The lower Court also therefore rightly rejected the claim of the appellant for exclusive rights in item Nos. 1 to 3 of the plaint A- Schedule property. The evidence on record was properly considered by the lower Court. 12. The rights of the appellant in plaint B-Schedule property are sought to be negatived on the basis of a Will, which is said to have been executed by the mother on 13-07-1973. The Will is evidently an unregistered Will, which is Ex.A-2. The mother of the parties died several years after the execution of the Will i.e., in 1986. The reason for exclusion of the rights of the appellant in B-Schedule property and giving more share to the 1st plaintiff is that the 1st plaintiff has given some monies to the 1st defendant and therefore, he has to be given more rights. In fact, any monetary relationship between the 1st plaintiff and the 1st defendant would not have arisen in the year, 1973. Since by that time, there is no proof of particulars of the amount payable by the 1st defendant. In fact, there was no contemplation of the death of the deceased and further, even during the trial, there is no evidence to show as to what exactly the amount payable by the 1st defendant to the 1st plaintiff. The fact remains that while the 1st plaintiff was said to be studying it was the 1st defendant that was taking care of the family. It is to be noted that any money even if paid by the 1st plaintiff to the appellant was never agreed to be adjusted at a later point of time by any understanding pleaded or proved by the parties. In fact, when agricultural properties of substantial extent are available and the 1st defendant is to account for the properties, the amounts if any, the 1st plaintiff has to get can be easily recovered or claimed against the 1st defendant. Therefore, in view of the above circumstance, the reason given by the defendant for excluding the appellant from the share in the B-Schedule Property under the Will is unnatural, and the mother would not have gone to that extent when evidently the 1st defendant was helping and taking care of the family and he is the only person that was in the village. 13. Added to that when the execution of the Will is disputed, the burden is evidently on the propounder of the Will to prove the same. Though the 2nd defendant supported the Will, he did not go into the box. The 1st plaintiff, who has propounded the Will, is no more. There is only evidence of PW-2, who speaks about the execution of the Will. The law is now well settled that the execution of the Will has to be proved by acceptable evidence. The suspicious circumstances have to be explained. So far as the evidence of PW-2 is concerned, he has gone to the house of Laxmi Narsayamma and she showed him the fair copy of the Will executed by her in favour of the deceased 1st plaintiff in favour of her in respect of the properties. According to him, she signed in his presence and he also signed on the Will as 1st attester. The 2nd attester is no more and the scribe is also no more. His evidence therefore, does not disclose that the deceased has given any declaration of her intention to will away the properties and the presence of scribe at that time is not spoken and the scribe reducing the Will to her dictation in his presence was not spoken, the fact that the scribe has read over the Will and accepted by the deceased was also not spoken. These are all essential legal requirements for accepting the proof of a genuine Will. In fact, as an elder member of the family, he should have asked as to why she was excluding defendant No.1 with regard to B-Schedule property. On the other hand, his evidence shows that he did not make any enquiry as to the particulars of the amount payable by the 1st defendant. According to him, he also did not question her about the share of the 1st defendant in the house. His evidence is therefore highly unnatural. Furthermore, the Will was not registered and no explanation is given as to why the Will was not registered. When the 1st defendant was given the immovable property, the question of his inability to discharge the debts of the 1st plaintiff does not arise. 14. Therefore, from the above circumstances, I have no hesitation in holding that the evidence of PW-2 is wholly insufficient to accept that the deceased executed a Will Ex.A-2 and that it is a genuine Will. The lower Court has not given proper reasons while deciding the issue on the Will and the failure of the propounder to prove the same. In fact, there is also no material to show as to the 1st plaintiff wanted that the share of the 1st defendant in the house shall be conveyed to him for discharge of his debts. Therefore, if the Will is not believed, then the appellant will be entitled to a share in the B-Schedule Property, to that extent the judgment of the lower Court is liable to be set aside. 15. Accordingly, the points are answered holding that the claim of the appellant that the sale deed Ex.A-1 is nominal, cannot be accepted and his claim that items 1 to 3 of the plant A-Schedule Properties exclusively belongs to him cannot be accepted. However, it is held that the Will Ex.A-2 is not a genuine one and it is not properly proved and surrounded by suspicious circumstances and reasons and the appellant is entitled to equal share in B-Schedule Property also. 16. In the result, the appeal is allowed partly setting aside the judgment of the lower court so far as relates to the denying of the right of the appellant in B-Schedule Property and the Will Ex.A-2 is found to be not valid and the appellant will be entitled to 1/3rd share in B- Schedule Property also along with the 1st plaintiff and the 2nd defendant as legal heirs. The rest of the judgment of the lower Court is confirmed. Each party is to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 09-03-2011. INL