*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + APPEAL SUIT NO.1711 OF 1991 % 13-09-2011 # Kautarapu Ganapathi Rao and another ….Appellants Vs. $Vangara Kameswaramma and others …. Respondents !Counsel for the Appellant : Sri G.Krishna Murthy Counsel for the Respondents: Sri K.K.Chakravarthy <Gist : >Head Note: ? Cases referred: 1. AIR 1995 ORISSA 88 2. AIR 1999 KERALA 274 3. AIR 1960 CALCUTTA 551 4. AIR 1964 S.C. 529 5. (1996) 9 SCC 324 6. (2005) 13 SCC 278 7. 1983(2)An.W.R.71 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.1711 OF 1991 JUDGMENT:- The defendants 3 and 5 on the file of the court of Principal Senior Civil Judge, Tenali are the appellants herein. The suit was filed for partition. The plaintiffs are the daughters and defendants 2 and 3 are the sons of late K.Srirama Murthy and 4th defendant is the wife of late K.Srirama Murthy, who died on 25-08-1982, possessed of the plaint schedule self-acquired properties, intestate. The plaintiffs and defendant Nos.1 to 4 are having 1/6th share and there are no encumbrances. The defendant Nos.1 to 3 have denied the rights of the plaintiffs for partition and they are claiming fabricated documents with a view to cause loss to the plaintiffs. The undivided son of the 2nd defendant by name Sai Sankar filed O.P.No.55 of 1982 for partition and the said O.P was dismissed as there was no cause of action. During the course of those proceedings, defendant Nos.1 to 4 have fabricated a false document said to be unregistered will said to have been executed by late K.Srirama Murthy in the year 1968 which is a forged one. The will did not see the light of the day till 16 years. The defendants have not cooperated for partition of the property and no share was given and hence the suit. The defendant Nos.1 and 2 remained ex parte. The defendant Nos.3 and 4 filed a written statement contending that late K.Srirama Murthy did not die intestate and all the suit schedule properties does not exist. The substance of the contention of the defendant Nos.3 and 4 that during his lifetime on 04-10-1968 late K.Srirama Murthy executed a holographic will and as per that will late K.Srirama Murthy gave Ac.1.00 of land to be shared equally by the plaintiffs 1 and 2 and defendants have no objection to deliver the said property. Subsequently, late K.Srirama Murthy got divided the properties into four (4) equal shares and gave three shares to defendant Nos.1 to 3 equally and a partition list was prepared on 22-11- 1997 and the particulars were given in the written statement. As per the partition list, passbooks were given and the share of late K.Srirama Murthy has to be enjoyed equally by his three sons after his death. The “C" Schedule property does not exist and there are no seven shares in the “D" schedule property. “E” schedule property is not clear. During the pendency of the suit, the 4th defendant is reported to have died and she said to have executed a will on 14-02-1983 and subsequently the 5th defendant on her own accord came on record basing on the will that the properties of the 4th defendant were succeeded by her which relates to the share in the “Cinema Hall” and the other properties to the 3rd defendant. The 3rd defendant has supported the plea of the 5th defendant. But, however, the plaintiffs have file a rejoinder disputing the will executed by late K.Srirama Murthy, the partition and also the will said to have been executed by 4th defendant. On the basis of the above pleadings, necessary issues have been framed. On behalf of the plaintiffs PWs.1 to 3 were examined and no documents got marked. On behalf of the defendants, Dws.1 to 7 were examined and marked Exs.B-1 to B-21, Exs.X-1 to X-3 were marked. After considering the evidence on record, the learned Senior Civil Jude has decreed the suit of the plaintiffs and consequently the present appeal is filed. For a decision in the suit, the following issues are to be considered:- 1. Whether the will dated 04-10-1968 which is marked as Ex.B-1 said to have been executed by late K.Srirama Murthy is binding on the parties? 2. Whether the will dated 14-02-1983 under Ex.B-13 executed by the 4th defendant is true? 3. Whether the plaintiffs are entitled for the partition and profits over the properties? POINTS:- There is not of controversy between the parties about the relationship and also the fact that the properties are the self acquired properties of late K.Srirama Murthy. The decision in the suit evidently is dependent on the factum of validity of the will Ex.B-1 set up by the defendants. If that will is accepted, then naturally the partition of the entire property does not arise. So far as this will is concerned, as the will was propounded by the defendants, the burden is on the defendants and in order to prove it, the defendants have examined DW.2 who is said to be an attestor on the will. This will evidently was said to have been seized when a Receiver was appointed in the earlier proceedings and noticed then. The fact that it was a holographic will of late K.Srirama Murthy is not in dispute. The lower court while considering this will has given a specific finding under issue No.2 that the will Ex.B-1 found to be true but is not a valid as it was not proved that there was proper attestation as contemplated under Section 61© of the Indian Succession Act. The lower court did not discuss any improbabilities in executing the will. The lower court came to the opinion that the signatures of the attestors might have been taken subsequently to validate the will though it might have been executed by late K.Srirama Murthy. Why and under what circumstances late K.Srirama Murthy has executed the will in 1968 cannot be viewed differently when it was found to be in his own hand-writing. At that time, there is no evidence of any undue influence and the rights of the children and their interest is equally protected. None of the children were denied any right in the property and some properties were given to the daughters also who are evidently seems to have been married by then. The intention of the testator to execute the will at that time is a matter of his own concern when there are no suspicious circumstances. So far as the proper proof of the will is concerned, the learned Senior Civil Judge has discarded the evidence of DW.2 that he was working as a clerk in a sundry shop and though his house is situated at a distance of 160 square yards to the house of testator and is a Vysya by caste and he hardly aged about 20 years by the date of execution and he is not a family member and therefore his association with the attestation of the will is suspicious. It was also noticed by the learned Senior Civil Judge that at the end of the body of the will, the writings as to the attestation are in different ink and the signature of the testator came also under the list of witnesses and therefore it is suspicious. The learned counsel for the appellant strongly contends that the reasoning given by the learned Senior Civil Judge is not valid particularly so if the law decided by the Supreme Court is applied to the facts of the case. According to him, the court shall start with the presumption that the holographic will is a genuine one and the burden is more on the other side who attacks the will as not true. Firstly he has relied upon the decision reported in Smt.Radharani Devi and others Vs. Smt.Kadambini Devi and others ([1]) whereunder it was held that use of different inks by the scribe, testator and attestors is not a suspicious circumstances and it is not abnormal. He also relied upon a decision reported in Baburajan Vs. Parukutty and others ([2]) wherein it was found that when the signature of the testator was placed at the end of the will, after the schedule of the properties are set out in will and after the signatures by the attestors, there is no suspicious circumstances in execution of the will. He also relied on a decision reported in Ajit Chandra Majumdar Vs. Akhil Chandra Majumdar([3]) wherein it was held that law makes a great presumption in favour of the genuineness of a holographic will for the reason that the mind of the testator in physically writing out his own will is more apparent in a holographic will than where his signature alone appears to either a typed script or to a script written by somebody else. In fact, the decisions reported in Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee([4]) and Joyce Primrose Prestor Vs. Vera Marie Vas and others([5]) also lays down the same principles. It is useful to refer to a decision reported in Hazara Bradri and others Vs. Lokesh Datta Multani ([6]) wherein it was held that the fact that a particular person was selected as an attesting witness and the doubt about the ability of the testator who has suffered leg fracture and use of different inks by the testator and beneficiary on one hand and by the attesting witnesses on the other hand are not good grounds to discard the testimony of the attesting witness. It was also found that the testator signing on some of the pages twice also not a ground to hold that the will is to be suspicious. Therefore, from the above principles of law, it is to be taken into consideration that a presumption is there about the genuineness of the will. In fact the finding of the lower court is that the will is true but however the legal requirement of attestation is not there as the evidence of DW.2 is not believed. It is to be mentioned that merely because DW.2 who is an attestor on the will belongs to a different caste and was young at that time, is a trivial factor. The fact that he was residing near the house of the deceased K.Srirama Murthy is also not in dispute. Merely because he was employed in a sundry shop does not disqualify him to be an attestor if otherwise his character is not blemishable. In fact, if any doubt about his integrity is to be established, it can only be in the cross examination of this witness. From his evidence, it is quite clear that none of the relatives were present and by the time of the will, the sons were residing in Bhattiprolu. In the cross-examination of this witness, it was only suggested that late K.Srirama Murthy did not execute the will in his presence and that his signature was obtained on a forged will by the 3rd defendant. But, however, the learned Senior Civil Judge did not accept the theory of forgery and held the will to be true. There is nothing in the cross-examination to show as to what was his interest in attesting a fabricated will or an existing will subsequently. He was also not questioned as to what was the special reason for late K.Srirama Murthy to call him as an attestor. Probably late K.Srirama Murthy has got confidence and acquaintance and wanted to keep the will not to be known to other family members he might have called non-family member as an attestor. Even in the evidence of DW.1, the will was found by the Commissioner at the time of making inventory in O.P.No.55 of 1982 which was filed by the son of the second defendant, the specific admission of DW.1 is that the will was in the hand-writing of his father. It is to be mentioned that the second plaintiff was examined as PW.1 and she did not utter anything about the suspicious circumstances about the will nor the theory of the subsequent attestation by DW.2. First plaintiff was also examined as PW.2 and she did not say anything about the credibility of DW.2 and it is the specific claim of PWs.1 and 2 that the will Ex.B-1 was not in the writing of their father and this is not accepted by the lower court and it was held to be the holographic will of late K.Srirama Murthy. Therefore, from the evidence available on record, there are no circumstances warranting an inference that DW.2 attestor on the will is not reliable man or a person pressed into service subsequently. His evidence is therefore clearly establishes the legal requirement of proof of a valid will and Ex.B-1 can be said to have been proved as duly executed by late K.Srirama Murthy. There is no denial of share to any of the children and if the male children were given any property more than the married daughters, it cannot be a case of suspicion. In fact, defendant Nos.1 and 2 who are the other brothers in this case are not disputing the existence of Ex.B-1 will and they are not supporting the case of the plaintiffs. Further more, the plaintiffs were also parties to O.P.No.55 of 1982 and when the Receiver has seized that will, there is no material to show that immediately they have filed any counter suspecting the will and they did not give any notice questioning the said will. Even prior to the suit also, no notice was given and an allegation was only made in the plaint even not specifically disputing the genuineness of the Ex.B-1 will attributing any suspicious circumstances or alleging that the signatures of the attestors were taken subsequently. In fact, this is a question of fact which has to be pleaded when the knowledge of the will was there even prior to the filing of the suit. On the other hand, the plaint proceeded on the premise that the will was fabricated one and forged one and there is nothing casting any aspirations on the attestors on the will. Therefore, the reasons given by the learned Senior Civil Judge in discarding Ex.B-1 will are not valid and it has to be held that the will is proved and proved to be valid and binding on the parties. The next question that falls for consideration is whether the will set up by the 5th defendant said to have been executed by the 4th defendant is true. Evidently, so far as this will is concerned, it deals with the separate share of the 4th defendant in the Cinema Hall business and it has nothing to do with the share of the late K.Sriram Murthy. The will does not specify what are the properties that were owned by the 4th defendant and it is only a general reference of succession to what ever properties she inherits or gets shall go to the 4th defendant. The trial court found that even though the suit was filed in 1984, the existence of this will was not mentioned though the written statement was filed in the year 1985. Evidently, she died in the year 1987. Therefore, she is conscious about the pleadings in the present suit and also the will which was set up by the 3rd defendant and the rights she got in the property of her husband. That being so and when the litigation is pending, any prudent person would have got it registered after filing of the suit itself or executed a will with regard to property which she got from her husband. Added to that, the will is said to have been executed in 1983 and the 4th defendant died in the year 1987 and it was for the first time in 1989 the 5th defendant comes with the unregistered will claiming that she got share in the Cinema Hall and the 3rd defendant got the property of the 4th defendant. When the defendant Nos.3 and 5 are living together and when to the knowledge of the defendant Nos.3 and 5, the will was executed by 4th defendant, they would not have kept quite for such a longer time in making an application to the Court to implead the 5th defendant as a party and also to produce the will. In fact, the 5th defendant has no interest in any of the suit schedule properties and the will is evidently an attempt to see that 3rd defendant gets the share of 4th defendant. Therefore, this is one of the circumstances which belie the truthfulness of the will. The learned Senior Civil Judge also has given sufficient reasons to discard the evidence of so-called attestors and the persons associated with the will. Further more, one of the un-natural recitals in the will is that leaving apart the eldest son, the 3rd defendant who is the younger son was asked to perform the obsequies of deceased-4th defendant. However, angry the mother may be with the children such type of exclusion of the eldest son from performing obsequies is highly unnatural and evidently this seems to have been introduced for the purpose of showing that as if 3rd defendant was close to the deceased- 4th defendant. In fact, it is not the case of anybody that the deceased-4th defendant has got any quarrel with the other sons-defendant Nos.1 and 2. Therefore, the said will has no affect and it cannot be accepted and the lower court rightly rejected the claim of the appellants. Therefore, the plaintiffs will be entitled for equal share in item No.5 which is said to be the land in Sy.Nos.248 and 249 conveyed under the will Ex.B-1 by their father. They will be entitled to the equal share in the property given to 4th defendant under the Ex.B-1 will along with defendant Nos.1 to 3. Therefore, a decree for partition has to be passed. So far as the mesne profits are concerned, the learned Senior Civil Judge has directed that an enquiry shall be conducted separately. Since the scope of the rights of the plaintiffs has been confined and appellate court having every power to decide the quantum of the mesne profits whether it is granted by the lower court or not and the court has got power to grant the future mesne profits even without asking the same the court by itself can award the same or order a separate enquiry. This power can also be exercised by the appellate court. In this connection, it is useful to refer to a decision reported in Kalepu Subbarajamma Vs. T.V.Pediraju and 10 others([7]) wherein it was held as under:- “We may observe that in none of these cases the power of the Court to grant mesne profits at the time of passing the decree for possession is doubted. On a consideration of the relevant provisions and the nature of relief, we hold that there is a distinction between the claim for past profits and a claim for future profits. The latter is based on a cause of action that arises subsequent to the date of the suit whereas the former relates to period anterior to the suit In the case of past profits the plaintiff has to specifically ask for it paying the ad volorem Court fee. In the case of future profits, no question of payment of Court fee arises as the period for which the negation prolongs cannot be predicated. We therefore hold that so far as future mesne profits are concerned even without there being a prayer in the plaint, the Court can award the same or direct an enquiry into the same at the time of passing the decree for possession. Similarly, the Appellate Court can grant future mesne profits even if there is no appeal by the plaintiff against that part of the decree which is silent about future mesne profits. In an appeal pending before it against a decree for ejection, the Appellate Court has got undoubted jurisdiction to grant mesne profits or to direct an enquiry into the same as it is a part of the general relief of possession. It is well settled principle of law that the power of the Appellate Court is coextensive with the power of the original Court and when an appeal is pending, the suit is deemed to be pending”. Therefore, in view of the above circumstances, it is a fit case where without any further enquiry, mesne profits can be directed to be paid by the appellants to the plaintiffs. Taking into consideration the nature of the properties and enjoyment by the defendants, I feel the ends of justice would meet if a sum of Rs.40,000/- is granted as mesne profits to each of the plaintiffs payable within two(2) months from this date failing which the plaintiffs will be entitled for interest @ 12 % till the date of realization. Accordingly, the points are answered. In the result, the Appeal Suit is allowed and the decree of the lower court is modified upholding the Ex.B-1 will and discarding Ex.B-17 will and holding that the plaintiffs shall be entitled for partition of the item No.5 equally which was conveyed under Ex.B-1 will and also 1/5th share in the property allotted to the mother-4th defendant under Ex.B-1 which is Garuvu Land (items 8 and 9 of plaint “A” Schedule property). The plaintiffs will also be entitled for mesne profits @ Rs.40,000/- each payable within two months from this day failing which the plaintiffs will be entitled for interest @ 12% p.a. from this day to till date of realization. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 13-09-2011 Note: L.R.Copy to be marked: YES (B/o) TSNR [1] AIR 1995 ORISSA 88 [2] AIR 1999 KERALA 274 [3] AIR 1960 CALCUTTA 551 [4] AIR 1964 S.C. 529 [5] (1996) 9 SCC 324 [6] (2005) 13 SCC 278 [7] 1983(2)AN.W.R.71