THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY A.S.No.1851 of 2001 JUDGMENT: This appeal filed under Section 96 of Civil Procedure Code is directed against judgment and decree passed in O.S.No.125 of 1997 dated 18.6.2001 on the file of the Principal Senior Civil Judge, Kurnool. The appellants are the defendants and the respondent is the plaintiff in the suit. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the suit. The plaintiff filed the suit to declare title in her favour over the plaint schedule properties and for delivery of the possession of the properties and for corresponding mesne profits on the following grounds. Late Chinna Nagappa was the brother of the plaintiff, who died intestate, whereas her father late Veeranna pre-deceased him intestate on 5.8.1989. Lalithamma, daughter of the first defendant was the wife of late Chinna Nagappa, who also died intestate on 2.6.1997. The plaint schedule properties and some other properties were owned by late Veeranna. After the death of Veeranna, the plaintiff and Chinna Nagappa succeeded to his properties being his children. Chinna Nagappa, brother of plaintiff was not mentally sound. In fact, the plaintiff filed suit O.S.No.71 of 1990 on the file of the same Court for partition and separate possession of their shares in the properties, but during the pendency of that suit, Chinna Nagappa died, by reason of which, the plaintiff succeeded to all his properties. However, ultimately the suit was compromised and a compromise decree was passed on 10.3.1993, in which ‘B’ schedule properties covered by the corresponding decree fell to the share of Chinna Nagapa were allotted to Lalithamma, his wife, whereas out of those properties, Lalithamma sold Items 2, 3(c), 4 and 5 during her lifetime and the subject properties are shown as Items 1, 3(a) and (b) in the compromise decree. Lalithamma died issueless and after her death, the defendants 1 and 2 sold item No.3(a) of ‘B’ schedule of the decree in that suit under registered sale deed dated 16.6.1997 to the defendant No.3, whereas that item was shown as item No.2 of the plaint schedule property in the present suit through a power of attorney executed by late Lalithamma dated 17.6.1993. But as Lalithamma died, the power of attorney stood cancelled and the subsequent sale in favour of third defendant dated 16.6.1997 is invalid, and by succession the plaintiff became owner of the property. Therefore, plaintiff is entitled for the relief as prayed for. Further, the Items 2 and 3 of the plaint schedule are in the occupation of tenants for a monthly rent of Rs.200/-, therefore plaintiffs are entitled to corresponding mesne profits. Hence the suit. The defendant No.1 filed written statement denying the plaint by and large and further claiming that Lalithamma executed Will in the presence of Notary bequeathing all her properties in favour of her mother K.Adivamma (first defendant) her father Chengappa and her sister Gouramma (second defendant) and the Will was acted upon after her death and therefore the succession as pleaded by the plaintiff never arise. Further, the plaintiff has got the knowledge of all the circumstances, therefore pleaded to dismiss the suit. The defendant No.3 filed written statement upholding the claim of the defendants 1 and 2. Subsequently, the plaintiff filed rejoinder denying the Will. On the basis of the pleadings, the trial Court framed the following issues for trial: 1. Whether the plaintiff is the owner of the suit schedule property and if so, she is entitled for recovery of the possession of suit schedule property? 2. Whether Will dated 22.10.1991 executed by Lalithamma is binding on the plaintiff? 3. To what relief? An additional issue was also framed for consideration: 1. Whether the defendant is the bona fide purchaser of Item No.2 of plaint schedule property for valuable consideration from the defendants 1 and 2 being the General Power of Attorney holder of late Lalithamma? On behalf of plaintiff, her husband Veera Sekharam was examined as P.W.1 and got marked Exs.A1 to A5. Further, on behalf of the defendants, the first of them got herself examined as D.W.1, one K.Nagaiah got examined as D.W.2, T.Thippanna got examined as D.W.3, S.M.Prasanna Kumar got examined as D.W.4, C.Kumara Swamy got examined as D.W.5, S.Siva Murthy got examined as D.W.6, K.Ramaiah got examined as D.W.7 and B.Jagadeesh got examined as D.W.8 and got marked documents Exs.B1 to B12. The Court also marked documents as Exs.X1, X2 and C1 to C3. After detailed consideration of the oral as well as documentary evidence, the trial Court allowed the claim of the plaintiff on the ground that the Will was not established and the plaintiff succeeded to the property of her deceased sister Lalithamma and hence she was entitled to the relief of declaration of title and possession of the property, which was in the hands of defendant No.3. Being aggrieved by the same, the present appeal is preferred. In order to dispose of the appeal, the following points are to be established. 1. Whether the defendants could prove the Will propounded? 2. Whether the plaintiff established her claim over the property and whether she is entitled to the relief as prayed for? 3. Whether the trial Court examined the matter properly and arrived at correct conclusions and the judgment and decree of the trial Court is sustainable or not? All these points can be answered together. The crux of the point is whether the Will and the Sale put-forth by the defendants are true and valid and when once it is not established, automatically it amounts to that by reason of her relationship with the deceased Lalithamma, the plaintiff became owner of the property and accordingly she is entitled to the reliefs prayed for. Ex.B2 is the Will in question. It provides that the deceased Lalithama executed it in the presence of a Notary bequeathing all her properties in favour of her mother K.Adivamma (first defendant) and her father Chengappa. It also provides that document was executed in the presence of elders, which was cancelled by her, whereas there is no basis to say as to what document it was. Further Ex.C3 is the compromise petition in I.A.No.112 of 1993, in which there is no reference about Ex.B2 Will dated 22.10.1991. It appears that Ex.C1 came into existence subsequent to Ex.B2 Will. If the Will was executed by late Lalithamma, the same would have been referred in Ex.B3 and when it was not referred, an adverse reference has to be drawn. Further, if the subsequent sale claimed by defendants 1 to 3 is proved, in the corresponding sale deed also, the same question would have been noted, unless no such execution of Will took place. Further, Ex.B1 is the General Power of Attorney dated 17.6.1993 claimed to be executed by late Lalithamma in favour of the defendants 1 and 2, but in that also no reference was made with regards to the Will. By virtue of Section 163(3) of Indian Succession Act, a Will should be attested by two attestors and by virtue of Section 68 of the Evidence Act, it should be proved by examining atleast one attesting witness and by virtue of Section 69 of the Evidence Act, if no attestor or scribe of the document is available, same can be established by examining those who got familiarity with their signatures and who can depose accordingly. There are many suspicious circumstances enumerated which are not dispelled. In fact, the trial Court examined various signatures on various documents including that made in the disputed Will and came to conclusion that the deceased did not execute the Will while rejecting it. It is the contention of learned counsel for defendants that the trial Court erred in making such comparisons without taking steps for sending the document to handwriting and finger print experts for necessary comparison and report and therefore, the findings given by the trial Court in that behalf are not tenable. By virtue of Section 73 of the Indian Evidence Act, the Court concerned got the authority to do so. However, if the contentions of the learned counsel for defendants are accepted, it is significant that there are other circumstances enumerated to disprove the Will. Further, there is no dispute that late Lalithamma died prior to the sale claimed by the defendants through power of attorney. It is not disputed that by virtue of the death of late Lalithamma, even prior to the execution of sale deed, the G.P.A. claimed to be executed by her in favour of defendants 1 and 2 stood cancelled. Therefore, the sale of the property by the defendants 1 and 2 in favour of the defendant No.3 subsequent to the death of Lalithamma is not valid. It is further contended by the learned counsel for defendants that the plaintiff did not come before the trial Court for giving evidence and therefore, it is fatal and consequently the evidence of her husband as P.W.1 should not be taken into consideration. It is pertinent to note here that the Lower Court allowed the plaintiff to examine her husband as P.W.1 on her behalf and in fact, he gave necessary evidence touching all the relevant circumstances pleaded by her. No provisions specify that unless plaintiff is examined, examination of her/his witnesses should not be taken into consideration. In fact, in this context, Section 120 of the Indian Evidence Act, 1872 clearly ordains; “Section 120: Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial: In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.” No limitations are provided thereunder in any manner in that context. Under these circumstances, without any hesitation, it is to be inferred that P.W.1 is a competent witness to speak about the claim of the plaintiff, being her husband and it is to be considered irrespective of whether she is examined or not with reference to the facts of the case. Therefore, the contentions raised by the learned counsel for defendants are not tenable. The appeal is devoid of merits and liable to be dismissed. Accordingly, the appeal is dismissed. There shall be no order as to costs. _________________________ G.KRISHNA MOHAN REDDY, J Date: .4.2011 DA THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY A.S.No.1851 of 2001 .4.2011