* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + C.C.C.A.Nos.13 of 2007 & 153 of 2009 %25-01-2010 # Gadepalli Jayaprakash S/o Gadepalli Shankaraiah, Prakashnagar, Begumpet, Secunderabad ….Appellant Vs. $ Gadepalli Saraswati (Died per L.Rs) Gadepalli Shankaraiah and others …. Respondents !Counsel for the Appellant: Sri A.V.Sesha Sai Counsel for the Respondents: Sri M.Adinarayana Raju Sri K.K.Durga Prasad <Gist : >Head Note: ? Cases referred: 2005(1) SCC 40 2005(1) SCC 280 2005(2) ALD 99 (SC) 2005(6) ALD 35 (SC) AIR 1968 SC 1332 2009(2) ALT 33 (SC) AIR 2007 SC 311(1) 2008(5) ALT 341 2007(3) ALT 75 AIR 1962 AP 178 (2002) 2 SCC 85: AIR 2002 SC 637 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CCCA.NOs.13 OF 2007 AND 153 OF 2009 COMMON JUDGMENT: These two appeals arise out of the common judgment dated 15- 12-2006 passed in O.S.No.4 of 1999 and O.S.No.89 of 2001 on the file of III Senior Civil Judge, City Civil Court, Secunderabad. 2. The material facts may be briefly stated as follows: Smt.Gadepalli Saraswathi and Gadepalli Shankaraiah are wife and husband. They have four sons and a daughter viz., G.Rama Rao, G.Jaya Prakash, G.Kishore, G.Vasudev and V.Lalitha. G.Shankaraiah and his four sons constituted a partnership firm in the name and style of M/s Karunasri Printers under a deed of partnership dated 14.12.1984. The partnership firm came to be reconstituted from time to time. The latest deed of partnership is dated 5.9.1994, copy of which has been exhibited as Ex.P-12. G.Vasudev, the youngest son died in the year 1997. G.Saraswathi purchased a house bearing No.79/SRT, New Municipal No.1-8-814, situated at Prakash Nagar, Begumpet, Secunderabad under Ex.A-1 registered sale deed dated 20.12.1968. G.Shankaraiah purchased land admeasuring 386 square yards in Survey No.15 situated at Chandulal Bowli, Tadbund, Secunderabad under a registered sale deed in the year 1991 and constructed a house therein. Subsequently he disposed of the house constructed by him. While so, G.Saraswathi issued Ex.A-2 notice dated 1.4.1998 to G.Jaya Prakash demanding him to vacate the house bearing No.79/SRT, New Municipal No.1-8-814, situated at Prakash Nagar, Begumpet, Secunderabad. G.Jaya Prakash issued Ex.A-3 reply notice dated 28.4.1998 alleging that the property in his occupation is a joint family property and the said property fell to his share in the oral partition among the members of the joint family. G.Saraswathi filed O.S.No.4 of 1999 against G.Jaya Prakash for eviction and recovery of possession of the suit schedule house i.e., No.79/SRT, New Municipal No.1-8- 814, situated at Prakash Nagar, Begumpet, Secunderabad. According to G.Saraswathi, she permitted her son G.Jaya Prakash-defendant to occupy the premises in the month of June, 1997 on a promise to vacate the same by December, 1997. Since G.Jaya Prakash- defendant failed to vacate the said premises despite her demand by way of Ex.A-2 notice dated 1.4.1998, she chose to file the suit with the prayer stated supra. G.Jaya Prakash filed O.S.No.89 of 2001 against G.Shankaraiah, G.Saraswathi, G.Rama Rao, G.Kishore Kumar for partition of the suit schedule properties and dissolution of the firm M/s Karunasri Printers and rendition of accounts. According to him, the house properties standing in the name of G.Shankaraiah and G.Saraswathi, which are more fully described as schedules I and II in O.S.No.89 of 2001 are the joint family properties and, therefore, he is entitled to 1/4th share therein. It is also his plea that the partnership firm viz., M/s Karunasri Printers is not yet dissolved and therefore it is required to be dissolved and accounts are to be settled through the process of court. The reliefs sought for by G.Jaya Prakash as plaintiff in O.S.No.89 of 2001 are: “ 1) For partition of schedules I and II properties by metes and bounds and to allot 1/4th share to the plaintiff; 2) For dissolution of partnership firm under the name and style of M/s Karunasri Printers, Tilleri road, Secunderabad and rendition of accounts; 3) For appointment of commissioner for passing final decree dissolution of partnership firm and rendition of accounts and to pay to the plaintiff his 1/4th share of profit and loss; 4) For costs of the suit; 5) Such other relief as the Court may deem fit and proper.” G.Shankaraiah and G.Saraswathi filed written statement in O.S.No.89 of 2001 resisting the claim of G.Jaya Prakash. According to them, M/s Karunasri Printers is not a joint family concern and it is a partnership business and the share of partners in the partnership business is specified in the deed of partnership. It is also their case that the partnership business came to be dissolved w.e.f. 31.3.1997 under Ex.A-30 deed of dissolution dated 13.6.1997. They took the plea in the written statement that G.Jaya Prakash and his three brothers purchased house properties independently in the year 1985, copies of which have been exhibited as Exs.A-26 to A-29, and no properties have been acquired by the partners jointly. Pending the suits Smt.G.Saraswathi died. G.Shankaraiah and Smt.V.Lalitha came on record as plaintiffs 2 and 3 in O.S.No.4 of 1999 as her legal representatives basing on Ex.A-35 WILL dated 6.6.1997. They claim that G.Saraswathi executed Ex.A-35 WILL dated 6.6.1997 bequeathing the suit property in their favour. As per Ex.A-35 WILL dated 6.6.1997, G.Shankaraiah has life interest and whereas Smt.V.Lalitha has absolute rights over the suit schedule house. G.Jaya Prakash claimed the suit schedule property No.79/SRT, New Municipal No.1-8-814, situated at Prakash Nagar, Begumpet, Secunderabad under an unregistered WILL dated 16.10.2005, which has been exhibited as Ex.B-29. 3. The learned Senior Civil Judge framed the following issues and additional issues in O.S.No.4 of 1999: “ 1) Whether the plaintiff is the absolute owner of the suit schedule property? 2) Whether the suit schedule property fell to the share of the defendant in the oral partition among the members of the joint family as contended by the defendant? 3) Whether the plaintiff is entitled to the eviction of the defendant from the suit premises? 4) To what relief? Additional issues: 1) Whether the will dated 16.10.2005 is true, valid and binding on the plaintiff? 2) Whether the will dated 6.6.1997 was cancelled by the will dated 16.10.2005 and the same is true, valid and binding on the defendant?” The issues framed in O.S.No.89 of 2001 are: 1) Whether the item No.1 of the suit schedule property is the exclusive property of D1? 2) Whether the Item No.II of the schedule property is the exclusive property of D2? 3) Whether the partnership firm M/s Karunasri Printers dissolved w.e.f. 31.3.1997 under dissolution deed dated 13.6.1997? 4) Whether the plaintiffs are entitled for the partition and separate possession of the item No.1 and II of the schedule property? 5) Whether the plaintiff is entitled to the relief of dissolution of the partnership firm? 6) To what relief?” Both the suits came to be clubbed and evidence came to be recorded in O.S.No.4 of 1999. On behalf of the plaintiffs, 3 witnesses were examined as P.Ws.1 to 3 and 35 documents were marked as Exs.A-1 to A-35. On behalf of the defendant, 3 witnesses were examined as DWs.1 to 3 and 31 documents were marked as Exs.D-1 to D-31. On considering the material brought on record and on hearing learned counsel for the parties, the learned Senior Civil Judge, decreed the suit being O.S.No.4 of 1999 while dismissing the suit being O.S.No.89 of 2001, by a common judgment dated 15.12.2006. Hence, these two appeals. More precisely C.C.C.A.No.153 of 2009 is filed against the judgment in O.S.No.89 of 2001 and C.C.C.A.No.13 of 2007 is filed against O.S.No.4 of 1999. Gadepalli Jaya Prakash is the appellant in both the appeals. O.S.No.4 of 1999 relates to one house property and O.S.No.89 of 2001 relates to two house properties. House property situated at Chadulal Bouli came to be disposed of by G.Shankaraiah much prior to the filing of the suits. The purchaser is not a party to the suit being O.S.No.89 of 2001. Therefore, the lis survives only in respect of house bearing No.79/SRT, Prakash Nagar, Begumpet, Secunderabad, which is the subject matter in O.S.No.4 of 1999. Whatever may be the pleas advanced by G.Shankaraiah/appellant, in both the appeals, his claim over the house property bearing No.79/SRT, Prakashnagar, Begumpet, Secunderabad is based on Ex.B-29 unregistered WILL dated 16.10.2005 allegedly executed by G.Saraswathi. Whereas G.Shankaraiah and Smt.V.Lalitha claim the same property under Ex.A-35 registered WILL dated 6.6.1997 executed by G.Saraswathi. At this juncture, at the cost of repetition I may state that G.Jayaprakash is one of the sons of G.Saraswthi and whereas G.Shankaraiah and Smt. V.Lalitha are husband and daughter respectively of G.Saraswathi. Execution of Ex.A-35 WILL is not disputed by G.Shankaraiah-appellant. Even otherwise, the subsequent WILL (Ex.B-29) propounded by G.Shankaraiah-appellant contains a recital with regard to execution of Ex.A-35 by G.Saraswathi. The beneficiaries under Ex.A-35 WILL examined one of the attestors of the WILL as P.W.3. 4. Heard Sri.A.V.Seshasai, learned counsel appearing for the appellant in C.C.C.A.No.13 of 2007 and C.C.C.A.No.153 of 2009 and Sri.M.Adinarayana Raju, learned counsel appearing for the respondent No.1 in C.C.C.A.No.153 of 2009 and respondents 2 and 3 in C.C.C.A.No.13 of 2007. 5. Learned counsel appearing for the appellant submits that the deceased-1st plaintiff prior to filing O.S.No.4 of 1999 got issued a legal notice demanding the appellant to vacate the premises and thereupon the appellant got issued Ex.A-3 reply notice denying the title of the deceased-1st plaintiff and in which case the suit filed by the deceased- 1st plaintiff for possession without seeking declaration of title is not maintainable. He would further submit that the deceased-1st plaintiff was admitted in NIMS hospital in September 2005 and after discharge from the hospital, she joined with the appellant and stayed till her death and that the deceased-1st plaintiff out of love and affection and keeping in view of the appellant being in occupation of the property since quite a long period, size of his family and injustice done to him in distribution of the assets of the partnership firm, executed Ex.B-29 WILL dated 16.10.2005 bequeathing her house property in favour of the appellant and that the lower court failed to consider these facts and thereby erred in decreeing the suit being O.S.No.4 of 1999 and dismissing O.S.No.89 of 2001. A further submission has been made by learned counsel that the appellant proved Ex.B-29 WILL dated 16.10.2005 in accordance with Sec.68 of the Indian Evidence Act and Section 63 of the Indian Succession Act by examining the attesting witnesses as DWs.2 and 3 and that the trial court committed serious error in discarding the evidence of DWs.2 and 3 on flimsy grounds. That the suit schedule properties in O.S.No.89 of 2001 were acquired out of the income derived from the partnership business and therefore the appellant is entitled to 1/4th share in the suit schedule properties. That the very fact the deceased-1st plaintiff in O.S.No.4 of 1999 died at the house of the appellant indicates that the deceased-1st plaintiff got complete satisfaction of the services rendered by the appellant at the fag end of her life and as a reciprocation of the services rendered by the appellant and his family members, conveyed the house property standing in her name in favour of the appellant by executing Ex.B-29 WILL and therefore, O.S.No.4 of 1999 is liable to be dismissed. In support of his contentions, reliance has been placed on the following decisions: 1) DAULAT RAM V. SODHA[1] 2) MEENAKSHIAMMAL V. CHANDRASEKARAN[2] 3) SRIDEVI V. JAYARAJA SHETTY[3] 4) PENTAKOTA SATYANARAYANA V PENTAKOTA SEETHARATNAM[4] 6. Learned counsel appearing for the respondents 2 and 3 in C.C.C.A.No.13 of 2007 and 1st respondent in C.C.C.A.No.153 of 2009 contends that the deceased/1st plaintiff was disputing the claim of the appellant by tooth and nail and she was discarded by the appellant and thereby she was compelled to stay along with her husband in a senior citizen home till few days prior to her death and indeed she was shifted to NIMS hospital from senior citizen home when she sustained injury and after few days of her treatment as an inpatient in NIMS hospital, she was taken to her own house where she breathed her last. Such is the situation; it is highly unbelievable and improbable that she developed affection and soft corner towards the appellant to cancel the earlier WILL and execute Ex.B-29 WILL conveying her house property to the appellant ignoring the interest of her husband who has been with her till she breathed her last. He would also contend that the partnership firm stood dissolved under Ex.A-30 dissolution deed much prior to filing of the suits and in which case the question of granting decree for dissolution of the partnership firm does not arise. Learned counsel further contended that except the partnership business, there were no joint family properties, which the appellant could seek for partition and whatever profits derived out of the partnership business were distributed among the partners as per the statement of accounts, which have been exhibited as Exs.A-13 and A-14. That the partners in the partnership business purchased the properties individually out of their own profits under registered sale deeds, copies of which have been exhibited as Exs.A-26 to A-29, and one partner was in no way concerned with the property purchased by another partner. Learned counsel referred to Exs.A-26 to A-29 to buttress his submissions that the partners individually purchased the house properties. In elaborating his arguments, the learned counsel contended that as on the date of the purchase of the property by the deceased-1st plaintiff in O.S.No.4 of 1999, there was no partnership firm and there were no joint family properties and in which case the contention of the appellant that the property standing in the name of deceased-1st plaintiff in O.S.No.4 of 1999 was out of the profits derived from the partnership firm has no basis. It is contended by him that WILL propounded by the appellant is surrounded with various suspicious circumstances such as pendency of litigation between the deceased- 1st plaintiff and the appellant and stay of the deceased-1st plaintiff along with her husband in senior citizens home till few days prior to her death. These well-founded suspicious circumstances were not properly dispelled by the appellant and in which case the trial court was justified in holding that Ex.B-29 WILL propounded by the appellant was not legal and proper. In support of his submissions, learned counsel placed reliance on the following decisions: 1) GORANTLA THATAIAH V. THOTAKURA VENKATA SUBBAIAH AND OTHERS[5] 2) BHARPUR SINGH V. SHAMSHER SINGH[6] 3) B.VENKATAMUNI V. C.J.AYODHYA RAM SINGHA AND OTHS[7] 4) AMARA VENKATA SUBBAIAH AND SONS V. SHAIKH HUSSAIN BI[8] 5) PINNAKA HANUMANTHA RAO (DIED) PER LR V. GARLAPATI DHANALAKSHMI ALIAS ANDALLU[9] 7. The points that fell for consideration in these appeals are: 1) Whether Ex.B.29 WILL propounded by G.Shankaraiah/appellant is true and valid? 2) Whether the appellant is entitled to claim any share in the house bearing No.79/SRT, Prakashnagar, Begumpet, Secunderabad? 8. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to asses as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so. 9. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao10, the Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony, which becomes apparent on an investigation of the transaction. Those suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough. 10. In the case of Madhukar D.Shende v. Tarabai Aba Shedage11, the Supreme Court held as follows: “ The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the Court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the jury in R v. Hodge [(1838) 2 Lewis CC 227] may be apposite to some extent. `The mind is apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.’ The conscience of the Court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict- positive or negative. It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the Court would not return a finding of `not proved’ merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance”. 11. The mode of proving the will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator’s mind, the disposition made in the will being unnatural, unprobable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s mind was not free. In such a case, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted, as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will, which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. Any and every circumstance is not a `suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal situation or is not of a normal person. 12. In Pinnaka Hanumantha Rao (died) per LR v. Garlapati Dhanalakshmi @ Andallu (9 supra), this Court after referring the relevant law culled out various principles with regard to proof of Will and while doing so, summarized inter alia the following circumstances which can be treated as suspicious: “The execution of the Will may be surrounded by suspicious circumstances like, --- a) The signature of the testator may be very shaky and doubtful or not appears to be his usual signature. b) The condition of the testator’s mind may be very feeble and debilitated. c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons. d) The dispositions may not appear to be the result of the testator’s Will and mind. e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on