* THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR + APPEAL SUIT No.1032 of 2004 % Dated 24th September, 2010 # Banda Sreeramamurthy …Appella V. $ Uppaluri Lalithamba(died) Mandapaka Bhimeswara Rao and others. …Responden ! Counsel for the petitioner: Sri A.Ramalingeshwara Rao ^ Counsel for the Respondents: Sri T.S.Anand Sri Y.Srinivasa Murthy < Gist : > Head Note: ? Cases Referred: 1. 1896 22 BOM. 17 (PC) 2. 1898 25 CAL. 825 (PC) 3. 1922 PRIVY COUNCIIL 366 4. AIR 1924 CAL. 513 5. AIR 1959 SC 443 6. AIR 1965 SC 354 7. AIR 2001 SC 2802 8. 2003 (1) ALD 763 9. AIR 2007 SC 614 10. AIR 2007 SUPREME COURT 1975 11. AIR 2007 SC 311 12. 2008 (3) ALD 13 13. 2009 (3) SCC 687 14. AIR 2002 KAR 83 15. AIR 2003 Gau 85 16. 1998 (4) SCC 384 17. AIR 1991 Cal 166 18. AIR 1932 Cal. 574 19. 1996 (4) ALT 360 20. AIR 1999 SC 1441 21. 2010 (3) ALT 343 22. 2010 (3) SCALE 769 23. 2010 (1) ALT 228 24. 2008 (5) ALT 776 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR APPEAL SUIT No.1032 of 2004 Date: 24th September, 2010 Between: Banda Sreeramamurthy ………..Plaintiff And Uppaluri Lalithamba(died) Mandapaka Bhimeswara Rao and others. ………..Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR APPEAL SUIT No.1032 of 2004 JUDGMENT: This Appeal is directed against the judgment and decree dated 24.10.2003 passed in O.S.No.205 of 1998 (old O.S.No.638 of 1990) on the file of III Additional District Judge at Vijayawada, whereby and whereunder the suit filed by the appellant was dismissed. 2. The parties will be referred as they are arrayed in the original suit for the sake of convenience. 3. The brief facts of the case are as follows:- The plaintiff is the adopted son of late Banda Satyanarayana & Sharadamba. He is also sister’s son of late Sharadamba. The first defendant – Lalithamba (died) is the sister of Sharadamba. After the death of the 1st defendant, her legal representatives were brought on record. Late Banda Satyanarayana, during his life time, bequeathed the suit schedule property to his wife Sharadamba under a registered Will in the year 1950. Banda Satyanarayana died on 16.1.1951 and the Will executed in favour of his wife Sharadamba came in to effect. It is the case of the plaintiff that he stayed with his adoptive mother for some time and later shifted to a separate residence. Late Sharadamba continued to live in one portion of the suit schedule house and she was letting out the remaining portions to defendants 2 to 7 and collecting rents from them. The first defendant is widowed sister of late Sharadamba. She had lost her only son and was residing with Sharadamba. Her daughter – 8th defendant, who got estranged with her husband, began to stay with her mother – the 1st defendant and her grand mother Sharadamba in the suit schedule house. 4. Late Sharadamba was admitted in St.Ann’s Hospital, Bandar Road, Vijayawada on 20.12.1978 and she died in the hospital on 1.1.1979. According to the plaintiff, he performed the obsequies of late Sharadamba as she is his adoptive mother. It is also his case that he was inherited the suit schedule properties being the sole legal heir and when he tried to take the suit schedule property, the first defendant and the tenants did not cooperate with him. Thereupon, he got issued registered notice dated 13.2.1979 to the first defendant and the tenants but the first defendant gave a reply setting up a false and forged Will dated 25.12.1978. Meanwhile, their relatives intervened and prevailing on the plaintiff to wait for some time hoping that better counsel might prevail with the first defendant. Subsequently, the first defendant filed R.C.C.Nos.23 to 26 of 1980 on the file of the Rent Controller, Vijayawada against the fourth defendant who contested the claim of the first defendant claiming the property and one of the tenant J.V.Chalapathi Rao pleaded that he was paying rents to the plaintiff, and, subsequently, those RCCs were dismissed directing the first defendant to establish her title to the property against the plaintiff. The first defendant has not initiated any legal proceedings. The plaintiff made efforts to get the record of St.Ann’s Hospital, Vijayawada, but in vain. Basing on the above averments, the plaintiff filed a suit for recovery of possession for mesne profits and costs. 5. The first defendant filed written statement and denied the allegations made by the plaintiff. It is averred that the very fact of plaintiff instituting the suit after a long delay of about 11 years speaks the conduct of the plaintiff and that the suit has been filed to grab the property. The first defendant further admitted in the written statement about the execution of the registered Will by late Banda Satyanarayana in favour of his wife late Sardamba bequeathing the suit schedule property. The specific case of the first defendant is that as there were disputes between the plaintiff and late Sharadamba, the plaintiff started living separately and was ill treating Sharadamba and in the above circumstances, late Sharadamba executed a registered Will bequeathing all her properties in favour of the son of the first defendant U.V.Raghava Rao, but, subsequently, the said U.V.Raghava Rao died and that the first defendant was serving Sharadamba to her best satisfaction and the daughter of the first defendant K.P.Ramalakshmi was also serving Sharadamba. Late Sharadamba was very much impressed by the service of the first defendant and her daughter and she had expressed her intention to execute a Will bequeathing her properties to the first defendant. 6. Thus, the case of the first defendant is that in pursuance of her intention, Late Sharadamba, in a sound and disposing state of mind, executed a Will dated 25.12.1978 bequeathing the properties in favour of the first defendant and her daughter K.P.Ramalakshmi. The Will was executed in the presence of attestors Vempati Venkata Brahmananda Rao and Sakala Venkatappayya and it was scribed by one Kamaraju Hanumantha Rao Sharma Pakayaji (Dharma Raju Hanumantha Rao). The factum of execution of Will by late Sharadamba was known to the plaintiff. The first defendant denied the averment of the plaintiff that late Sharadamba died intestate on 1.1.1979 and that the plaintiff inherited the plaint schedule property. She has also denied the other allegations made by the plaintiff that the plaintiff tried to take possession of the property and that she did not cooperate with the plaintiff. However, the first defendant admitted about the exchange of notices. She has also admitted about the dismissal of RCC Nos.23 to 26 of 1980 and the observation of the Rent Controller that the property rights over the petition schedule property have to be decided by a competent Civil Court and not by a tribunal. It is also the case of the plaintiff that some of the tenants vacated their respective portions and handed over vacant position to the first defendant recognizing her right over the property and subsequently, she had let out the portions to the new tenants who have been regularly paying rents to her. 7. Basing on the above pleadings, the lower Court framed the following issues:- 1. Whether the plaintiff is entitled to possession and profits regarding the suit property? 2. Whether the suit is belated? 3. Whether there was estrangement between plaintiff and his adoptive mother Sharadamba, as a result of his ill-treatment towards her? 4. Whether there was a Will executed by Sharadamba in favour of late U.V.Raghavarao, son of 1st defendant? 5. Whether the unregistered Will dated 25.12.1978 in favour of Defendant-1 and her daughter was validly executed in a sound state of health of mind by the late Sharadamba and it binds the plaintiff? 6. Whether the tenants have recognized the first defendant as their land lord? 7. Whether there was mediation between plaintiff and D1? 8. Whether the plaintiff is entitled for interest? 9. To what relief? 8. On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and one Sister of Sugandhi was examined as P.W.2 and Exs.A1 to A5 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B3 were marked and Exs.X-1 to X-7 were marked through witness. 9. The learned III Additional District Judge, Vijayawada, having considered the material and documentary evidence in detail, held that the defendants have proved the Will and that the plaintiff failed to prove that late Sharadamba was not in a sound and disposing state of mind at the time of execution of Will and that there are no suspicious circumstances surrounding the execution of Will and the testatrix of the Will had given valid reasons for executing the Will in favour of the first defendant and for not giving any properties to the plaintiff. The lower Court also held that it is the first defendant and the eighth defendant who were looking after the welfare of Sharadamba since a long time. The trial Court also held that the Will is proved by examining the children of the attestors. 10. Sri A.Ramalingeswara Rao, the leaned counsel for the appellant / plaintiff vehemently argued that the execution of Will is surrounded by suspicious circumstances and those suspicious circumstances have not been taken into consideration by the lower Court. His first submission is that the testatrix was admitted in the hospital and she was unconscious and the record shows that she was suffering from Cerebro Vascular Accident and in the above circumstances, there was no possibility of testatrix executing any Will and, therefore, the Will was fraudulently brought into existence. It is also his submission that none of the Doctors who treated Sharadamba were examined and admittedly neither any Doctor nor any nurse were present at the time of execution of the Will. It is his submission that when Sharadamba was in hospital and was executing a Will, in all probabilities, they ought to have obtained the signature of the Doctor or at least the nurse to note down mental condition of Sharadamba to remove suspicious circumstance that she was unconscious and could not execute the Will. It is also his submission that admittedly, the first defendant and her daughter were present in the hospital at the time of execution of the Will and this shows that they had influenced Sharadamba to execute the Will and it is also another suspicious circumstance. It is his further submission that the 1st defendant did not whisper in her written statement that late Sharadamba was admitted in the hospital and it amounts to suppress of the fact. It is also his submission that neither the 1st defendant nor the 8th defendant who are the beneficiaries of the Will had not entered into the witness box to dispel the suspicious circumstances surrounding the execution of the Will and for not entering into the witness box, adverse inference has to be drawn against the defendants. It is also his submission that the Courts below has failed to evaluate the evidence in proper perspective and rushed to wrong conclusions. It is also his submission that the other circumstances that the Will was not registered and that late Sharadamba did not file any suit though there was an observation by the Rent Controller that property rights over the petition schedule property have to be decided by a competent Civil Court further strengthen the suspicious circumstances. It is also his submission that the appellant / plaintiff was trying to get necessary documents from the hospital and in spite of his making best efforts, he could not get the relevant documents to prove that late Sharadamba was unconscious during the period of her treatment and that he was also not having sufficient money to pay the Court fee and to meet the cost of litigation and in the above circumstances there was some delay in approaching the Court. It is also his submission that merely because there is a delay in approaching the Court or in challenging the claim of the 1st defendant, that itself cannot be made a ground to throw away the plaintiff out of the Court. 11. Per contra, the learned counsel for the respondents submitted that late Satyanarayana himself executed a Will bequeathing certain properties to the plaintiff and the suit schedule property to late Shardamba in the year 1950 and from that relations between the plaintiff and late Sharadamba were stained and that there was none to look late Sharadamba and that it is the 1st defendant and her daughter – the 8th defendant who were looking after late Shardamba and in the above circumstances, late Sharadamba initially executed a Will in favour of the son of first defendant but subsequently, the son of the first defendant – U.V.Raghava Rao died, and, therefore, the said Will became infructuous. It is also his submission that since the 1st defendant and her daughter were looking after late Sharadamba and she was satisfied with their services and intended to bequeath properties in their favour and as such, Late Sharadamba consulted her Advocate by name Chaganti Suryanarayana and expressed her intention to execute a Will. It is also his submission that the evidence on record shows that Late Sharadamba had given necessary instructions to Changanti Suryanarayana, Advocate, and that he prepared a draft Will and that it was read over to late Sharadamba and as per his direction, D.W.1 scribed the Will and later on, the contents of the fair copy of the Will were read over and explained to late Sharadamba and that Late Sharadamba affixed her thumb impression on the Will in the presence of two persons – Vempati Venkata Brahmananda Rao and Salaka Venkatappayya and that D.W.1 also signed as a scribe. It is also his submission that the evidence of D.W.1 clinchingly establishes that late Shardamba was in sound and disposing state of mind at the time of execution of the Will and that she had executed the Will in the presence of attestors and that there are no suspicious circumstances surrounding the execution of the Will. It is also his submission that the plaintiff did not refer to any suspicious circumstances in his claim except simply mentioning that the Will is a fabricated document and was obtained fraudulently. It is also his submission that when fraud is alleged, the burden lies on the plaintiff to prove such fraud. It is also his submission that the submissions of learned counsel the plaintiff that the plaintiff could not get the documents from the hospital and that the financial condition of the plaintiff was not good were not referred by the plaintiff either in his affidavit or in his chief examination. It is also his submission that it is an admitted case that the 1st defendant filed R.C.Cs against the tenants and that the Rent Controller had observed that the rights over the petition schedule property have to be decided by a competent Civil Court and that the plaintiff did not choose to get impleaded as a party to those proceedings. Learned counsel had referred to the evidence in support of his contention that there were strained relationship between the plaintiff and late Sharadamba and the contention of the plaintiff (P.W.1) that he visited the hospital when late Sharadamba was undergoing treatment cannot be accepted because subsequently he himself deposed that his brother informed that Late Sharadamba was unconscious in the hospital for a period of about one week. It is also his submission that the recitals of Ex.B.1 – original Will itself show under what circumstances Late Shardamba executed the Will and it is self explanatory and that the intention of the testatrix could be seen from the recitals of Ex.B1. It is also his submission that the very fact that the plaintiff (P.W.1) obtained Ex.A.5 after filing of the suit shows that he did not wait for any medical reports for filing the suit. Referring to the evidence of P.W.2 and the documents filed by the plaintiff, it is submitted that in the register of the hospital, it is noted as CAV and CAV, according to P.W.2, is Cardio Vascular Accident and the witness called at the instance of P.W.1 herself described that Late Shardamba had Cardio Vascular Accident it cannot be now termed as Cerebro Vascular Accident. 12. It is also his submission that neither the case sheet is called for nor any Doctor is examined and that it is not the case of P.W.1 that he consulted the Doctor who treated Late Shardamba to show that late Shardamba was unconscious while undergoing treatment in the hospital. It is his submission that had the case sheet been filed, it would have revealed the health condition of late Shardamba as her everyday heart beat would be noted in the case sheet and it would have shown whether late Shardamba was unconscious or in sound state of mind. It is also his submission that in view of the delay in approaching the Court and in view of the delay caused in commencement of trial, valuable evidence has been lost and that the attestors who attested the Will died in the meanwhile and that Changanti Suryanarayana, Advocate, to whom late Shardamba gave instructions to draft the Will also died and for these circumstances, the plaintiff has to be blamed as he approached the Court belatedly, that too after about 12 years after the execution of the Will. It is his further submission that immediately after the death of late Shardamba there were exchange of notices between the parties in the year 1979 itself and that the first defendant, in her reply notice in Ex.B.3, categorically stated about the execution of the Will by late Sharadamba and also the particulars of the attestors who attested the Will and about giving of instructions by late Shardamba to his Advocate Changanti Suryanarayana. It is also his submission that when all particulars with regard to the execution of Will were already informed to the plaintiff in 1979 itself, the plaintiff kept quiet and did not raise his little finger, but, approached the Civil Court only in the year 1979 i.e., after a period of 12 years and that itself shows that the plaintiff has no case. It is also his submission that regarding the alleged suspicious circumstances surrounding the execution of the Will, no suggestions have been given to D.W.1 or to any of the witnesses examined on behalf of the defendants. It is also his submission that the attestors who attested the Will died and their children have been examined to identify the signatures of the attestors and their evidence clinchingly established that the Will was properly attested. It is also his submission that it is for the plaintiff to specifically plead the suspicious circumstances surrounding the Will in his pleadings and had the plaintiff raised those suspicious circumstances, the burden would have been shifted to the defendants to dispel those suspicious circumstances and since the plaintiff himself did not whisper any suspicious circumstances in his pleadings, the burden does not shift to the defendants. 13. In support of his contentions, learned counsel for the appellant / plaintiff had relied on the judgments in Sala Mohommed Jafferbhai Vs. Dame Janbai[1], Rash Mohini Dasi Vs. Umesh Chunder Biswas[2], Ram Gopal Lal Vs. Aipna Kunwar[3], Bhairab Chandra Das and others Vs. The Midnapur Zemindari Co., Ltd.[4], H.Venkatachala Iyengar Vs. B.N.Thimmajamma and others[5], Ramachandra Rambux Vs. Champabai & others[6], N.Kamalam & another Vs. Ayyaswamy & another[7], B.Ramachandra Reddy and others Vs. Nelli Subbamma and another[8], Niranjan Umeshchandra Joshi Vs. Mrudula Jyothi Rao & ors[9], Benga Behera & Anr. v. Braja Kishore Nanda & Ors[10], B.Venkatamuni Vs. C.J.Ayodhya Ram Singh[11], Kadiyala Appa Rao Vs. kadiyala Kamalamma[12], Bharpur Singh & others Vs. Shamsher Singh[13], Virupakshappa Malleshappa and others Vs. Smt.Akkamahadevi and others[14], Rabindra Nath Hazarika Vs. Phulti Hazarika[15], Gurdial Kaur and others Vs. Kartar Kaur & others[16], Sushila Bala Saha Vs. Saraswati Mondal[17], Surendra Nath Lahiri Vs. Jnanedra nath Lahiri[18], Raj Kumar Deen (died) per LRs. Vs. Dr.A.S.Din[19], Vidyadhar Vs. Mankikrao and another[20], G.Jayaprakash Vs. G.Saraswati and others[21], Balathandayutham and anothers Vs. Ezhilarasan[22] and Malampati Suryamba and others[23]. 14. In support of his contentions, learned counsel for the respondent/defendant had relied on judgments in Muddana Malleswara Rao @ Sambasiva Rao Vs. Karanam Ramaiah & Nagaratnamma Charities rep. by Hereditary Managing Trustee, Sri Muddana Bhaskara Rao, and others[24] wherein, it was held that wherein a hindu widow is vested with certain properties which she enjoys even before adopting a child, the latter shall not divest even an adoptive mother of her rights in property, which vested in her before adoption. The above principle, which is found in proviso (c) to Section 12 of the Act, is further made clear in Section 13 of the Hindu Adoptions and Maintenance Act, 1956 which is to the effect that adoption does not deprive the adoptive father or mother of their power to dispose of property by transfer inter vivos or by Will. Wherein a beneficiary under a will is residing in the house where the Will was executed, her presence at the time of execution of the Will was found to be not unnatural. It was observed by this Court that when execution takes place in the house where she is residing, there is nothing unnatural and, therefore, it cannot be treated as suspicious circumstance. 15. Having considered the above rival contentions, the points that arise for consideration in this appeal are as follows:- 1. Whether the propounder of the Will has proved the execution of the Will by Late Sharadamba; 2. Whether there are any suspicious circumstances surrounding the execution of the will; 3. Whether the testatrix was in a sound and disposing state of mind at the time of execution of the Will; 4. Whether the propounder had taken prominent role in execution of the will; 16. The entire sum and substance of the decisions relied upon by the learned counsel for the appellant/plaintiff and learned counsel for the respondent/defendant is capsulated in the following paragraph. 17. The Will must be attested by at least two witnesses; Will cannot be used as evidence until at least one of the witnesses is called for the purpose of proving its execution; Every allegation cannot be treated as suspicious unless they are well founded on a close scrutiny; Adoption does not deprive the adoptive father or mother of their power to dispose of the property by transfer inter vivos or by Will; When the execution of Will takes place in the same house in which the beneficiary has been residing, her presence at the time of execution of Will cannot be treated as unnatural; When the attestor is not alive, his signature can be proved by examining the person who can identify the attestor’s signature; Burden of proof that the Will was forged or that it was obtained by undue influence or coercion or by playing fraud is on the person who alleges it to be so; Initial burden lies on the challenger to prove that there are suspicious circumstances surrounding the execution of Will; if the execution of Will is surrounded by suspicious circumstances, then the burden shifts to the propounder to prove that there are no such suspicious circumstances in executing the Will; and the suspicious circumstances should be abnormal. POINT Nos.1 & 2:- 18. It is settled law that execution of Will must be proved in accordance with law. Chapter V of the Indian Evidence Act, 1872, (‘the Evidence Act’, for brevity) deals with the subject of documentary evidence. 19. Sections 67, 68 and 69 of the Evidence Act are as follows:- “Section 67 - Proof of signature and handwriting of person alleged to have signed or written document produced If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be