THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Second Appeal Nos. 461 and 464 of 2007 Common Judgment: Since the parties and issues involved in both the appeals are common, they are being disposed of by this common judgment. S.A. No. 461 of 2007 is filed by the appellant aggrieved by the judgment and decree dated 14.03.2007 passed by the IX Additional District and Sessions Judge-cum-Chairman, Motor Accidents Claims Tribunal, Visakhapatnam, in dismissing the Cross Appeal filed by her in A.S. No.287 of 2005. S.A. No. 464 of 2007 is filed by the appellant against the judgment and decree dated 14.03.2007 passed by the IX Additional District and Sessions Judge-cum-Chairman, Motor Accidents Claims Tribunal, Visakhapatnam, in allowing the appeal in A.S. No. 287 of 2005 and reversing the judgment and decree dated 29.08.2005 passed in O.S. No.13 of 2001 by the Senior Civil Judge, Chodavaram. The parties hereinafter will be referred to as they are arrayed in the original suit for the sake of convenience. The brief facts of the case as seen from the record are as follows. The plaintiff filed the suit in O.S. No. 13 of 2001 against the defendants for partition of the plaint schedule properties and for allotment of 1/4th share to her, inter alia, contending that she is the legally wedded wife of late Gorle Mutyalayya and that the defendants are the illegitimate children of G. Mutyalayya born through his concubine Simhachalam and that the plaintiff is the sole legal heir of late Mutyalayya, who was the absolute owner of the plaint schedule properties. It is also her case that she filed O.S. No.48 of 1972 on the file of the I Additional Subordinate Judge, Visakhapatnam, claiming maintenance against her husband Mutyalayya and that the said suit was decreed. It is also her case that Mutyalayya died intestate on 05.07.1999 and she is entitled to 1/4th share in all the plaint schedule properties. It is also her case that after the demise of Mutyalaiah she raised dispute in the presence of villagers demanding partition of the plaint schedule properties and since the defendants are postponing the same she got issued a legal notice on 13.03.2001 and subsequently she filed the present suit. The specific case of the defendants is that the plaintiff is not in possession and enjoyment of the plaint schedule properties at any time along with the defendants and that late Mutyalayya, during his life time, disposed of considerable properties and left only Ac.2-00 of land which is also in possession of third parties and thus the plaint schedule given by the plaintiff is not correct. It is also their case that the plaintiff, during the life time of Mutyalayya, deserted him and thereafter as per the caste custom Mutyalayya married their mother about 45 years back. The specific case of the defendants is that their father executed a registered Will on 11.09.1978 bequeathing all his properties to defendants 1 and 2 with absolute rights and therefore the plaintiff is not entitled to claim any share in the properties bequeathed through the said Will. It is also their case that they had informed the plaintiff about the registered Will executed by their father after receiving lawyer notice from the plaintiff and that the plaintiff promised that she will not initiate any legal proceedings against them. Subsequently, the plaintiff got amended her plaint and averred that she is entitled to 5/8th share in the plaint schedule properties. The second defendant also filed additional written statement denying the same. The trial Court framed issues and subsequently additional issues. On behalf of the plaintiff, the plaintiff herself was examined as PW.1 and PWs.2 and 3 were examined and Exs.A1 to A5 were marked. On behalf of the defendants, the first defendant was examined as DW.1 and DWs.2 and 3 were examined and Exs.B1 to B6 were marked. The learned Senior Civil Judge, Chodavaram, on consideration of the entire oral and documentary evidence on record, came to the conclusion that the defendants failed to prove the Will Ex.B1 said to have been executed by their father and that the widows share must be ascertained by adding the share to which she is entitled at a notional partition during her husband’s life-time and therefore the plaintiff would get half share in the properties left by her husband and, accordingly, decreed the suit in part declaring that the plaintiff is entitled for partition of the plaint schedule properties and for allotment of half share in the plaint A, B and C schedule properties. Aggrieved by the same, the defendants carried the matter in appeal in A.S. No. 287 of 2005, wherein the plaintiff also filed her cross appeal. The lower appellate Court, on re-appreciation of the entire evidence, came to the conclusion that there are no suspicious circumstances to disbelieve the Will Ex.B1 and that the evidence of DW.2 proves the execution of Will by late Mutyalayya and thus held that the defendants proved the execution of Will Ex.B1. The lower appellate Court also held that the mother of the plaintiff was the sister of late Mutyalayya and that all the plaint schedule properties are the joint properties of mother of the plaintiff and Mutyalayya and that late Mutyalayya is having only half share in those properties and that the plaintiff never claimed any right in the properties left over by her mother and that in the earlier suit filed by the plaintiff she had claimed only maintenance and did not ask for partition of her share and therefore her right over the plaint schedule properties to the extent of half share stands extinguished under Section 27 of the Limitation Act. It was further held that in view of the execution of the Will by late Mutyalayya the plaintiff is not entitled to any share in the plaint schedule properties and accordingly allowed the appeal filed by the defendants and dismissed the cross-appeal filed by the plaintiff and consequently dismissed the suit. The main submission of the learned counsel for the plaintiff/appellant herein is that the trial Court has rightly held that there are suspicious circumstances surrounding the execution of Will Ex.B1 and the lower appellate Court failed to consider the evidence in proper perspective and wrongly believed Ex.B1. It is also his submission that the lower appellate Court failed to consider that the cause of action for filing the suit arose on 05.07.1999 i.e., on the date of death of the husband of the plaintiff and therefore the plaintiff’s claim was well within the limitation. He further submitted that in the absence of any pleading, issue and argument about the extinguishment of right of the plaintiff as per Section 27 of the Limitation Act, the lower appellate Court has committed a substantial legal error in non-suiting the plaintiff. The following substantial question of law is formulated by this Court for consideration. “Whether the lower appellate Court failed to take note of the crucial fact that the cause of action for the present suit, as stated in the plaint, arose on 05.07.1999, that the plaint is presented on 11.07.2001 and also that the rights of the appellant are not extinguished as such?” The plaintiff’s case is that she is the legally wedded wife of G. Mutyalayya and that she married him in the year 1952. Of course, the admissions made by her reveal that she lived with her husband for a period of only one year or even less than one year. But, admittedly, the defendants did not make any specific plea that late Mutyalayya divorced the plaintiff and that their marriage is not subsisting. The defendants have examined DW.3 in support of their contention that late Mutyalayya divorced the plaintiff. But the trial Court, on appreciation of evidence, disbelieved the evidence of DW.3. Any evidence or even voluminous evidence without pleading will be useless and cannot be taken into consideration. When the defendants have not placed any material to show that there was a valid divorce between the plaintiff and their father, their subsequent version cannot be accepted. More over, this issue came up for consideration in O.S. No.48 of 1972, wherein the plaintiff claimed maintenance against G. Mutyalayya before the I Additional Subordinate Judge, Visakhapatnam, and in the said suit it was held that the marriage between the plaintiff and G. Mutyalayya has been subsisting. It is also clear from the recitals of the said judgment that charge was created on the properties of G. Mutyalayya. Admittedly, a wife is entitled to the share in the properties of her husband. Merely because a person, who is entitled to the share, has been residing at some other village or did not claim any right in the properties, will not loose his/her right. More over, as rightly submitted by the learned counsel for the plaintiff the right of the plaintiff to claim a share in the properties of her husband accrued to her only on the death of her husband and in view of the same the finding of the lower appellate Court that the plaintiff’s right stands extinguished under Section 27 of the Limitation Act is not proper and legal. Yet, there is another circumstance. The lower appellate Court seems to have taken a stand that the mother of the plaintiff and late Mutyalayya were sister and brother and therefore the mother of the plaintiff was having half share in the properties of Mutyalayya. When the defendants had not taken such a plea in their written statement it is clear that the appellate Court is not justified in holding that the sister of Mutyalayya had half share in the properties of Mutyalayya and it was neither the plea of the plaintiff nor the plea of the defendants. In view of the same, it has to be held that the finding of the appellate Court that because of the inaction of the plaintiff, her rights over the plaint schedule properties to the extent of her half share stands extinguished under Section 27 of the Limitation Act and rights accrued in favour of Mutyalayya, is illegal and therefore the same has to be set aside. Now, it has to be seen whether there are any suspicious circumstances surrounding the execution of Ex.B1 Will. Ex.B1 is the Will said to have been executed by Mutyalayya on 11.09.1978. It has to be seen under what circumstances he executed the Will. Admittedly, the plaintiff had deserted him soon after their marriage and she was not residing in the village of her husband since last 40 years prior to his death. She has also admitted that there is a custom of remarriage and divorce in their community. It is the case of the defendants that G. Mutyalayya married their mother Simhachalam about 45 years ago prior to the date of institution of the suit. It is also an admitted case that in 1972 the plaintiff filed a suit claiming maintenance from G. Mutyalayya and the said suit was decreed on 20.09.1976. Admittedly, a charge was created on the properties of G. Mutyalayya. Admittedly, the defendants are the children of G. Mutyalayya through Simhachalam. Simhachalam, the mother of the defendants, died in 1996. Dw.1 is their elder son. It appears that all the children of G. Mutyalayya were minors during that period and therefore G. Mutyalayya might be under an impression that if he bequeathed his properties under a Will, the interest of his minor sons could be protected. In the above circumstances, there is nothing unnatural in executing a Will by late Mutyalayya. Now, it has to be seen that whether the Will has been proved or not? Ex.B1 is the registered Will. DW.2 is the attestor of the said Will. Though DW.2 was cross-examined at length nothing has been elicited to disbelieve his testimony. Of course, DW.2 is no other than the son- in-law of G. Mutyalayya. Merely because he is the son-in-law of Mutyalayya, it does not mean that his evidence has to be discarded. A reading of the recitals of Ex.B1 gives an impression that the said Mutyalayya had tried to protect the interest of his unmarried daughter also. He has also mentioned about his first wife i.e., the plaintiff herein and also stated that it is the responsibility of his sons to provide maintenance to her. The learned Senior Civil Judge held that DW.2 does not know whether the property bequeathed is the ancestral property or the self-acquired property of Mutyalayya. It has to be seen that DW.2 has acted only as an attestor and being the close relative of Mutyalayya, he might have chosen DW.2 as an attestor. More over, DW.2 was working as an Engineer in R and B Department. Merely because DW.2 does not know whether the property bequeathed is the self-acquired property or ancestral property of Mutyalayya, his evidence cannot be rejected. An attestor is not expected to know as to whether the property bequeathed is ancestral property or self-acquired property. It is further observed by the learned Senior Civil Judge that Dw.2 does not know whether any Sarpanch or the Village Munsif from the village of Mutyalayya came to the Sub-Registrar’s office. First of all, it is not necessary that Mutyalayya should call a Sarpanch or Village Munsif from his village to act as attestors. The learned Senior Civil Judge has also wrongly observed that there is no reference of the plaintiff in the Will. A reading of the Will clarifies the position that the testator has referred about his first wife i.e., the plaintiff herein. According to Dw.2, his father-in-law Mutyalayya requested him to come to the office of the Registrar and that as per the instructions of his father-in-law Ex.B1 was drafted by the scribe and then the scribe had read over the contents of the said Will and after satisfying himself the correctness of the contents of the Will his father-in-law had put his thumb impression in his presence and also in the presence of Paruvada Demudu. Thus, DW.2 had categorically deposed that he himself and Paruvada Demudu had attested the said Will. The learned Senior Civil Judge had also commented that DW.2 did not depose whether he had attested the compromise memo filed in O.S. No.12 of 1987 on the file of the Senior Civil Judge, Chodavaram. It is not a ground to reject the evidence of DW.2. The lower Court observed that DW.2 is not inclined to speak information which is not favourable to him and his wife. The learned Senior Civil Judge committed an error in drawing adverse inference against DW.2, merely because he could not remember whether he had attested the compromise memo in O.S. No.12 of 1987 or not. The learned Senior Civil Judge also observed that Ex.B1 came into existence only within two years from the date of judgment in O.S. No.48 of 1972 in favour of the plaintiff. That is a circumstance in favour of the defendants in fact. Because the plaintiff had obtained decree against him, G. Mutyalayya may be thinking about the disposition of his properties through a Will. Though the alienation is subject to the charge created in O.S. No.48 of 1972 but since the Mutyalayya had directed the beneficiaries under the Will to pay maintenance to the plaintiff it cannot be said that bequeathing of properties is not valid. A reading of the entire evidence gives an impression that the findings of the lower appellate Court are correct on this point and the findings of the trial Court are not based on proper appreciation of evidence. In view of the same, I hold that the findings recorded by the lower appellate Court on this aspect cannot be disturbed. Though the plaintiff claimed 5/8th share in her plaint, but while deposing before the Court, she has restricted her claim to only 1/4th share in the plaint schedule properties. Now, it has to be seen whether the plaintiff is entitled to 1/4th share as claimed by her. Though the appellate Court held that the sister of Mutyalayya was having half share in the properties of Mutyalayya, but, admittedly, it is neither the case of the plaintiff nor the case of the defendants that the sister of late Mutyalayya was having half share in the properties of late Mutyalayya. More over, the evidence on record reveals that a partition suit was filed by the son of sister of Mutyalayya and the said suit was compromised. If that is the case, it is clear that whatever properties Mutyalaiah was having they were the properties which he was having after compromise in the suit filed by the son of his sister. Though the defendants pleaded that Mutyalayya executed a gift deed dated 21.08.1996 in favour of the third defendant and subsequently the properties have been alienated on 20.05.1997, but admittedly, the defendants did not make any specific plea with regard to those transactions in the written statement and in the absence of any pleading those transactions cannot be taken into consideration. Admittedly, Mutyalayya was the sole coparcener after the compromise between himself and his sister’s son as referred above. In M. Yogendra v. Leelamma N[1], it was held as follows. “It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.” Therefore, when Mutyalayya seems to be a sole coparcener particularly after the compromise in the above referred suit filed by the son of his sister, the property allotted to him has to be treated as separate property. When it is a separate property, he had every right to dispose of the same as he intended. Thus he had every right to bequeath his property under a Will. Had he died intestate, his wife, sons and daughter would have got equal shares in his properties. I n Goureshetty Srinivas v. Gouresheety Ramalingam[2], it was held that a son born to a Hindu in a second marriage, which is null and void, cannot claim rights as a coparcener and he is not entitled to any share of the joint family property of the father and that he can claim only a share in the father’s share of the joint family property as well as his self acquired property. I n Jinia Keotin v. Kumar Sitaram Manjhi[3], it was held as follows. “Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only. Though Section 16 was enacted to legitimize children, who would otherwise suffer by becoming illegitimate, at the same time, in view of an express mandate of the legislature itself under sub-section (3), there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would amount to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself.” In G. Nirmalamma v. G. Seethapathi[4], it was held as follows. “When a male Hindu contracts second marriage when the legally wedded first wife is alive, the marriage is in violation of Sec.5(i) of the Hindu Marriage Act and it can be held that it is a void marriage, but the children born to them are legitimate children and they are entitled to succeed to the properties of their father, who died intestate and the second wife is not entitled to share the property of her husband, but she can claim maintenance.” I n R. Appaiah v. Special Tahsildar, Land Reforms, Addanki[5], it was held that the widow of a deceased coparcener cannot enforce partition of her husband’s share against his brothers. So, in the light of the above discussion, it has to be held that a son born to a Hindu in a second marriage, though not entitled to any share in the joint family property, but he is certainly entitled to a share in the property of his parents. In the instant case, it is already held that after compromise in the suit filed by the son of the sister of G. Mutyalayya, the property remained with Mutyalayya and it becomes the sole property of Mutyalayya. Therefore, the plaintiff and defendants are entitled to equal shares i.e., each 1/4th share in those properties. In view of the above discussion, I hold that since the property became his absolute property Mutyalayya had every right to bequeath the same by executing a Will and since Ex.B1 – Will is accepted, all the properties that have been bequeathed to the defendants under Ex.B1 have to be excluded from the plaint schedule properties and in the remaining plaint schedule properties, the plaintiff and the defendants 1 to 3 will get each 1/4th share and suit filed by the plaintiff has to be decreed accordingly. In view of the above discussion and findings, both the appeals are allowed in part to the extent as indicated above and accordingly the suit filed by the plaintiff is decreed in part. However, in the circumstances, no costs. ______________________ B. CHANDRA KUMAR, J. Date: 04.03.2011 Nsr [1] (2009) 15 SCC 184 [2] 2002 (6) ALD 618 [3] (2003) 1 SCC 730 [4] 2000 (6) ALT 513 [5] 1988 (1) ALT 289