IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH AT HYDERABAD. Dated this 30th day of September, 2010 Present: Hon’ble Sri Justice P. Swaroop Reddy A.S.No. 2466 of 1989 Between: A. Kamala Bai (died) and another ..Appellants And B. Kanna Rao ..Respondent PSR, J. A.S.No. 2466 of 1989 Judgment The unsuccessful plaintiff filed this appeal aggrieved by the Judgment in O.S.No. 213 of 1983 dated:29-3-1989 on the file of the learned Subordinate Judge, Nellore. (For the sake of convenience the parties herein would be referred to as they are arrayed before the trial court). 2. The brief facts of the case are: The plaintiff and defendant are none other the mother and son. The plaintiff and her sister, Gangu Bai are the daughters of Govinda Rao, who is the owner of the suit schedule property. After his death, the plaintiff and her sister partitioned the property vide registered partition deed dated: 18.10.1967. In the said partition, Plaint-A Schedule fell to the share of the plaintiff and she has been in possession and enjoyment of the same by paying Municipal Taxes. The defendant and his wife used to reside with the plaintiff with her permission and he ill-treated the plaintiff at the instance of his wife. The plaintiff hypothecated the site, raised loan and constructed the present building and she redeemed the loan by selling her jewellery. The defendant used to reside in one of the portions of the house and let out the other four portions on which she was getting rent of Rs.500-00 PM. The defendant also has been enjoying the rent of Rs.750-00. In spite of issuance of notice, as the defendant did not vacate the portion of house, in which he was residing, she filed the suit for recovery of possession. 3. The defendant filed his written statement denying the averments made in the plaint. It is stated that plaint-A schedule property originally belonged to Govinda Rao and after his death, the property devolved on his two daughters, including the plaintiff. The defendant himself constructed the schedule house by raising loan from Andhra Bank and Cooperative Urban Bank. The plaintiff herself wrote to the Cooperative Urban Bank that the house is the property of the defendant; that he alone repaid the loan amount and he became the absolute owner of the house property. The defendant also stated that he has perfected his title by adverse possession. He denied that he ever ill-treated the plaintiff. The plaintiff granted license to the defendant to construct the building; he constructed the building by spending Rs.40,000-00 and as such cannot revoke the license. 4. On the basis of the above pleadings the trial court framed the following issues for trial: i) Whether the plaintiff is entitled for the declaration of title and for possession of the plaint “A” Schedule property? ii) Whether the defendant has perfected his title to the plaint “A” Schedule property by adverse possession? iii) Whether the plaintiff is entitled for the rent or damages for use and occupation as prayed for? iv) To what relief? 5. In support of her case, the plaintiff examined PWs 1 & 2 and marked Exs A-1 to A-12 and on behalf of the defendant, the defendant got examined DWs 1 and 2 and got marked Exs B-1 to B- 70. On a consideration of the entire evidence on record, the trial court decreed the suit and as against the same, the present appeal is filed. 6. During the pendency of the appeal as the plaintiff died, Balle Prasad son of the defendant herein filed A.S.M.P.No.11895 of 2004 stating that the plaintiff had bequeathed the suit schedule property in his favour vide Will Dated:11-3-1999; as such he may be impleaded as plaintiff in the place of the deceased plaintiff, which was allowed on 16.6.006. Subsequently, the defendant herein filed A.S.M.P.No. 2141 of 2006 to set aside the order passed in A.S.M.P.No.11895 of 2006 dated:16.6.2006. 7. This court by order dated:14.08.2007 passed the following Order: “AS.MP.No.11895 is restored to file in view of the orders passed on14.6.2007 in AS.MP.No.2141 of 2006. The said application is filed to bring the petitioner on record as legal representative of the sole appellant, who since died. The suit appears to have been filed by the deceased- appellant for declaration of title against the sole defendant, who is her son. Since the suit, after a full fledged trial, was dismissed, the instant appeal is filed. During the pendency of the appeal, the sole appellant died. Her grandson namely, the son of the sole defendant, is now seeking to come on record being a legatee under the will dated:11.03.2009 said to have been executed by the deceased appellant as legal representative. A counter has been filed by the contesting respondent in the appeal challenging the genuineness of the said will. Therefore, in ASMP.No.11859 of 2004 the genuineness or otherwise of the will shall have to be enquired into and a finding is to be given in accordance with Order22 Rule 5 of the Code of Civil Procedure. Call for a finding from the Court below in A.S.M.P.No.11859 of 2004 as to the genuineness or otherwise of the will and post the appeal after receiving the said finding from the court below”. 8. In pursuance of the directions of this court in A.S.M.P.No. 1704 of 2008 in A.S.M.P.No. 2141 of 2006 in A.S.No. 2466 of 1989, the learned Principal Senior Civil Judge, Nellore conducted inquiry and submitted his report dated:19—04—2010 stating that the proposed party (2nd plaintiff) has proved the Will (Ex A-14) as the genuine Will executed by the first plaintiff in the suit. The learned Judge examined PWs 4 and 5 and DW-3 and marked Exs A-13; A-14 and Ex A-15. 9. The Defendant (the respondent herein) challenging the above finding contending that the learned trial Judge has given an erroneous finding and the execution of the Will is not proved at all. Now, it has to be seen whether the execution of Will is proved. 10. The evidence of PW-4, the present proposed party is that the first plaintiff executed Registered Will on 19.7.9797 bequeathing part of the suit schedule property to him. Subsequently the first plaintiff executed her last registered will on 11.3.1999 in sound and disposing state of mind bequeathing her entire property, including the suit schedule property with absolute rights and died on 8.10.2002. Since then he became the absolute owner of the property. The will dated: 11.3.1999 was duly executed by the first plaintiff and singed by Sk. Jani Basha and K. Ramachandaiah as attesting and identifying witnesses. It was drafted by B. Ramanaiah, document writer. He has been looking after her welfare during her last days, as she was inimical with his father i.e., the defendant in the suit and that he (PW- 4) was residing at Kattemupudivari veedhi, Santhapet separately; his parents were residing separately and first plaintiff was residing separately. During her last days when the first plaintiff fell sick, PW- 4 got her admitted in Vijaya Hospital, Pogathota, Nellore; served her and that the will dated: 11.3.1999 is true and genuine. 11. PW-5 is one of the attestors. His chief affidavit is that he is residing at Gayatrinagar, Nellore and that he is a native of Podalakur town and Podalakur Mandal of SPSR Nellore District. PW-4’s father, Balle Kanna Rao was working as Compounder in Veterinary Hospital in Podalakur; at that time the plaintiff was also residing with the defendant at Podalakur; the second plaintiff studied 8th; 9th and 10th classes at Podalakur and thereafter himself and second plaintiff studied intermediate in Sarvodaya College, Nellore; they became friends and in view of the above friendship, he used to visit the house of the second plaintiff now-and-then. The first plaintiff in a sound and disposing state of mind executed will dated: 11.3.1999 bequeathing her entire property to PW-4 - her grandson. She signed on the Will in his (PW-5) presence and in the presence of K. Ramachandraiah in the premises of Registrar’s Office, Nellore. They signed as attesting witnesses. One Baddepudi Ramanaiah is the scribe of the will. 12. DW-3 (daughter of the defendant), in her chief affidavit stated that the first plaintiff is her paternal grandmother, who died on 8.10.2002. During her last days she was looked after by her parents and not by PW-4. She died intestate and never executed any Will. She neither executed the Will dated: 19.07.1997 nor the Will dated: 11.3.1999. Both those Wills are fabricated. 13. The learned counsel appearing for the defendant contends that the Will is manipulated one; the Testatrix never signed in the presence of Attesters PW5 and another and that there is no circumstance to show that the deceased, first plaintiff has any special reason to bequeath the entire property in favour of PW-4, as, admittedly, PW-4 has other siblings; whereas the learned counsel for the proposed party contends that the Will is genuine; the Will was executed in the presence of PW-5 and others and that plaintiff No.1 has singed the will in the presence of PW-5 and as PW-4 has looked after the first plaintiff during her last days, she executed the Will in his favour. 14. Now the point hat arises for consideration is whether the Will date:11.3.1999 is genuine. 15. Now the following two points would arise for consideration: i) Whether there are any special circumstances for the first plaintiff to execute will dated:11.3.1999 in favour of PW- 4 leaving the other grand children i.e., other siblings of PW-4; and ii) Whether the will is properly and validly executed. 16. Coming to the first point – PW-4 in his evidence stated that he was looking after the welfare of the first plaintiff during her life time, as she was inimical with his father; he was residing at Kattempudivari Street, Santhapet, Nellore separately; his parents were residing separately and that the first plaintiff was residing separately. That during her last days, when the first plaintiff fell sick, he got her admitted in the hospital. The Will is dated:11.3.1999; whereas the first plaintiff died in the year 2002. Even according to the chief examination of PW-4, he looked after the first plaintiff during her life time, as she was inimical with his father i.e. the defendant. His evidence shows that he was residing at Kattempudivari Street, Santhapet Nellore; his parents were residing separately and the first plaintiff was residing separately and during her last days, when the first plaintiff fell sick, he got admitted her in the hospital. Thus he was not residing with her. He was residing else where in a separate house in Nellore town. In case he was looking after her welfare; she would have stayed with him. His further contention, as per chief affidavit, is that during her last days, when she fell sick he got admitted her in Vijaya Hospital, which can be treated as something like few days before her death. But the Will is executed about three years prior to her death i.e, on 11.3.1999. Obviously by then PW-4 was not staying with her and in that case, there was nothing like looking after her. 17. In his cross examination, PW-4 stated that by the date of Ex A-13, she (first plaintiff) was living with him. This statement must be obviously incorrect, in view of what he has stated in his chief examination; wherein he has stated that first plaintiff was staying in a separate house, and he was staying in Kattempudi vari street, Santhapet, Nellore. It is further stated by PW-4 that by the date of Ex A-13 ground floor and first floor were completed and in schedule of Ex A-13 it is referred to as vacant site with tin shed. Thus, the description of the property is also incorrect. Elsewhere in the cross examination, PW-4 has stated that at the time of Ex A-14, the first plaintiff was residing in his care and custody and he secured a separate room for her in Katempudivari street, kept her there and she alone was residing in the said room. In case, this PW-4 was looking after her welfare, there was no question of his securing a room for her and keeping her there and he should have kept her with him. It is again stated that by the date of Ex A-14, she was residing in a portion of the suit schedule house; the first plaintiff refused to stay with him and as litigation is pending, she does not want to enter the suit house. Even this statement is incorrect as, in his chief examination; he stated that he was staying in a house in Kantepudivari street. He has stated that the first plaintiff was attending to her work. She was preparing food for herself and again stated that he used to send break-fast in the morning and Tiffin in the evening, which looks somewhat odd and unacceptable. 18. PW-5 the attester has never stated that PW-4 looked after the first plaintiff. On the other hand, his chief affidavit is that the defendant worked as a Compounder in Veterinary Hospital, Podalakur from 1973 to 1976; at that time the first plaintiff resided with the defendant at Podalakur; whereas the case of the plaintiff is that the defendant completely neglected her; he did not look after her and she was staying separately at Nellore. Thus this PW-5 seems to be having not much acquaintance with the family affairs of first plaintiff and PW-4. 19. The above circumstances show that there are no compelling or special circumstances for the first plaintiff to execute the Will in favour of PW-4, by leaving the other children. His contention that as he looked after the first plaintiff, she has executed the Will in his favour, is obviously incorrect. 20. Coming to the second point, the learned counsel for the defendant contends that execution of the Will is not properly proved and that there is no material to show that the attesters have seen the Testatrix/first plaintiff signing the Will which is the foremost requirement to prove the execution of a Will. 21. PW-5 in his cross examination stated that “I cannot say who gave instructions for preparing my chief affidavit. I do not know the contents of my chief affidavit.” The learned Senior Civil Judge, who submitted the report, did not at all consider this question of PW-5 stating that he did not give instructions for preparing his chief affidavit and on account of that no weight can be given to his chief affidavit. 22. The learned counsel for the defendant contends that the pre- requisite for proving a will is the Attester seeing the Testatrix signing the Will, which is not there in the present case; as such the Will cannot be said to have been proved. 23. The contention of the learned counsel for the plaintiff is that, as PW-5, in his chief affidavit, has stated about his seeing the execution of the Will, it has to be accepted that he has seen the Testatrix signing the Will. The legal requirement of proving the Will under section 63 of the Indian Succession Act, is that the Will has to be attested by two witnesses and each of these witnesses must have seen the Testatrix signing or affixing her/his mark on the Will. In the present case, the chief examination of PW-5 cannot be taken into consideration for the reasons stated in paragraph-14 of this order. 24. In the present case, there is no compliance of S. 63(c) of the Succession Act and S. 68 of the Indian Evidence Act. The document required by law to be attested and can be proved by examining, at least one of the attesting witness and in the present case if PW-5’s chief examination is not taken into consideration, it cannot be said that the execution of the Will is proved. 25. Further more, PW-5 in his cross examination stated that he is not aware of the contents of the Will. That means, even, according to him, the contents of the Will were not explained to the Testatrix (PW-1) before the same was signed by her. In case, the contents were explained to her, PW-5, would have naturally known the contents. It is not as if PW-5’s evidence is that he does not remember the contents of the will, which would have been natural, after long gap; but his evidence is that he does not know the contents of the Will, at all, which must have been correct, as his evidence is that by the time he reached, the said document was prepared and made ready for signatures. PW-4 also in his chief examination never stated that the Will was read over and explained to the first plaintiff, before its execution and her signing the Will. His Statement in paragraph-4 of the chief affidavit is that the Will was duly executed by the first plaintiff and signed by PW-5 and K. Ramachandraiah, as attesting witness, as well as identifying witness, itself, may not be sufficient to prove that the contents were explained to the Testatrix, before she signed, if at all she signed, and Attestors have seen her signing the will. 26. Coming to the evidence on the defendant’s side, the defendant has not examined himself; but his daughter is examined as DW-3. She has not even seen the will. No material is produced on behalf of the defendant to say that the Will is not executed by the Testatrix, and, in fact, the burden lies on the plaintiff to prove the execution of the Will. Want of evidence on behalf of the defendant is of no consequence, particularly in a case of this nature; where there is absolutely no evidence to show that the Testatrix has signed the Will in the presence of PW-5, the Attestor, as, in case, his chief examination is not taken into consideration, there is no material on record to show that the contents of the Will were read over and explained to the Testatrix before she has (allegedly) signed the Will. 27. In a decision of this Court in Malampati Suryamba v. Venigalla Koteswaramma[1] relied on by the leaned counsel for the respondent, reliance was placed on the decision of this court in Pinnaka Hanumantha Rao v. Gariapati Dhanalakshmi[2] , wherein this court referred to the suspicious circumstances like - (a) The signature of the testator may be very shaky and doubtful or not appear 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 free will and mind; (e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him; (f) The testator used to sign blank papers; (g) The Will did not see the light of the day for long. (h) Incorrect recitals of essential facts; and (i) The unregistered Will challenged as forged comes from the custody of major beneficiary. 28. In this case, at least condition (c) i.e., disposition made in the will may be unnatural, improbable, unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons, can be said to be there. At least to certain extent, as admittedly, PW-4 has other siblings, including a brother and the reasons stated by him for preferring him or of his looking after her during last days, are not convincing, as already discussed and the circumstances mentioned in condition (e) the propounder takes a prominent part in the execution of the Will conferring substantial benefit on him. In the present case, he has arranged for execution of the Will by taking the first plaintiff to the Sub-Registrar’s office, by contacting the attesting witnesses and by engaging a scribe; to some extent referred to in (b) the condition of the incorrect recitals of essential fact is also there, as the property which was of two floored building is shown as vacant place with tin shed. 29. PW-4 in his cross examinations stated that his father and first plaintiff compromised and came to an understanding and a letter was obtained from first plaintiff stating that the appeal pending before this Court would be withdrawn and the said letter was sent to the Advocate at High Court but the said letter was not filed before the High Court; that, himself and the defendant, both obtained letters from the first plaintiff and the defendant asked the first plaintiff to send the letter to her advocate and also a copy of the letter to his Advocate, which shows that the matter was compromised between the mother and son i.e., the first plaintiff and the defendant during the life of the first plaintiff. It is not clear as to for what reasons, the promise letter was not filed before the High Court. This circumstance also shows that the execution of the will by the first plaintiff is doubtful. 30. In the circumstances, the finding of the Senior Civil Judge cannot be accepted and it cannot be said that execution of the Will (Ex A-14) is proved. 31. In view of the foregoing discussions and findings recorded by me, I hold that the appeal stands abated. 32. In the result the appeal is dismissed as abated. There shall be no order as costs. _______________________ P. SWAROOP REDDY, J. September 20, 2010. *BVS [1] 2010 (1) ALT 228 [2] 2007 (3) ALT 75