THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CITY CIVIL COURT APPEAL No.102 of 2003 Dated:- 07th September, 2011 Between:- P.Narsing Rao …Appellant And P.Ramarao and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CITY CIVIL COURT APPEAL No.102 of 2003 JUDGMENT:- This appeal is directed against the judgment and decree dated 18.11.2002 passed in O.S.No.543 of 1995 by the II Senior Civil Judge, City Civil Court, Hyderabad, whereby and whereunder, the suit filed by the respondents herein was decreed. 2. The appellant herein is the first defendant, respondents 1 to 5 herein are plaintiffs 1 to 5 and respondents 6 and 7 herein are defendants 2 and 3 before the Court below. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Court below. 3. Initially, the suit in O.S.No.543 of 1995 seeking partition and separate possession and damages in respect of residential house bearing municipal number 16-2-147/F, with plinth area of approximately 1,000 square feet consisting of Ground Floor, over an extent of 417 square yards situated at Ward No.16, Block II, Anandnagar, Malakpet, Hyderabad (the suit schedule property) was filed by the first defendant – P.Narsing Rao. Since he died during the pendency of the proceedings, his wife, sons and daughter were brought on record as his Legal Representatives, as per the order dated 20.04.1998 of the Court below in I.A.No.1639 of 1996. The first plaintiff – P. Rama Rao and the first defendant are the sons, second defendant – P.Kalavathi is the wife and the third defendant – Smt. B.Girija is the daughter of Late P.Narayan Swamy, who was working as typist in Municipal Corporation of Hyderabad. His daughter – Smt. B.Girija – the third defendant was married in the year 1960 when she was aged about 12 years. The specific case of the first plaintiff is that his father Late P.Narayan Swamy purchased residential plots bearing Nos.141,142 and 143 totally admeasuring 417 square yards situated at Ward No.16, Block No.2, Malakpet, Hyderabad, under Ex.A.1 from his vendor – Sri Khaja Shamseeuddin under registered sale deed dated 30.04.1964 out of his own savings; that his father, having obtained the permission under Ex.A.2 and sanction plan under Ex.A.3 from Municipal Corporation of Hyderabad, constructed the suit schedule property in different phases with the money saved by him, which was mutated in his own name during his lifetime and was paying the property tax to the municipal authorities; that his father Late P.Narayan Swamy died on 20.09.1975 leaving behind him and defendants 1 to 3; that except the suit schedule property, his father was not having any other property; that after the death of his father, he, being the son of Late P.Narayan Swamy, is entitled to 1/4th share in the suit schedule property and defendants 1 to 3 are also entitled to 1/4th share each; that he and defendants 1 and 2 were in joint possession of the suit schedule property, but however, the first defendant is in occupation of large extent of it; that in spite of several demands for partition and separate possession of the suit schedule property, the first defendant went on dodging the matter and the efforts made by him for amicable settlement through the elders failed; that he got issued legal notice through his counsel P.Narsing Rao on 21.02.1995 to the first defendant and as the first defendant avoided to receive the said notice, he got issued another notice on 14.03.1995 and though the said notice was served on the first defendant, he did not give any reply notice; that the first defendant postponed the partition on the ground that the partition would be affected immediately after the marriage of his daughter; that the marriage of the daughter of the first defendant was solemnized on 26.03.1995, but even after performing the marriage of his daughter, the first defendant did not effect partition of the suit schedule property. Alleging that the first defendant was trying to alienate the suit schedule property, the plaintiff filed the suit before the Court below for partition and for allotment of his 1/4th share and for costs. 4. The first defendant alone filed written statement. Besides denying the material averments made by the first plaintiff, the specific case of the first defendant is that the plots under Ex.A.1 Sale Deed were purchased by his father – Late P.Narayan Swamy with the ‘Stridhana’ money of his wife Smt. P.Sunitha; that the income of his father Late P.Narayan Swamy was only Rs.300/- per month and it was not sufficient to meet the household expenses of the family; that the plaintiff, who was in teens, was enjoying wayward life; that during his engagement, his in-laws presented Rs.10,000/- in cash on 05.04.1964 to his wife; that out of the said amount of Rs.10,000/-, his father Late P.Narayan Swamy had spent Rs.2,500/- for purchasing the above referred three plots; that his marriage was solemnized on 25.05.1964 and after the marriage, his father had initially constructed one room and kitchen and hall with lime and mortar over the suit schedule property, spending about Rs.5,000/-; that he was aged about 19 years at the time of his marriage and that since he was only 19 years old and immature, his father has purchased the suit schedule property in his own name; that his father – Late P.Narayan Swamy never availed any loan for construction of the suit schedule property; that he got registered himself as a contractor with Municipal Corporation of Hyderabad in the year 1967 itself and did number of contract works and got a telephone in his name in the year 1971 itself; that another three rooms were constructed over the suit schedule property with his earnings in the year 1975; that the first plaintiff was roaming like a vagabond with all vices and did not contribute a single pie to the family; that he was looking after his father till the death of his father; that after retirement, his father purchased two plots in People’s Cooperative Society, Chikkadpally, in the name of the first plaintiff and the third defendant, each plot worth of Rs.23,000/-; that his father performed the marriage of the first plaintiff with plaintiff No.2 who hails from a poor family and the said marriage was performed by the money contributed by the elders and well-wishers; that his father, who could foresaw evil designs and quarrelsome character of the first plaintiff, executed Ex.B.10 – Will on 21.12.1978 bequeathing the entire suit schedule property in the name of his wife and further bequeathed the plots which were purchased in the Peoples’ Cooperative Society, Chikkadpally, in the name of the first plaintiff; that due to sympathy, he allowed the first plaintiff to live in a room in the suit schedule property and the plaintiffs never paid any amounts to him towards electricity and water charges; that the third defendant was married in the year 1960 and she had no right in the suit schedule property and that she had knocked away all the gold ornaments of his mother at the time of the funeral of his mother. Thus, the specific case of the first defendant is that the suit schedule property is not the self-acquired property of his father – late P.Narayan Swamy, but it was purchased in the name of Late P.Narayan Swamy with the amount gifted to his wife as ‘Stridhana’ at the time of his marriage. It is also his case that Late P.Narayan Swamy is having 20% shares in S.R.Chemicals, which is being managed by the husband of the third defendant; that after the death of his father, the profits of S.R.Chemicals were not given to him and subsequently, the unit was sold; that the first plaintiff filed the present suit on the ill-advice of the third defendant; that the third defendant also instigated the second defendant to breed litigation; that Late P.Narayan Swamy declared to the income tax authorities in the year 1967 itself that the suit schedule property purchased by him were with the ‘Stridhana’ of his daughter in law – P.Sunitha. The first defendant also denied the allegation that the plaintiffs have made any demands for partition or that any notice was issued to him. It is also his case that the first plaintiff has realized his mistake and was intending to withdraw the suit. 5. During the pendency of the suit, the second defendant – the mother of the first plaintiff and defendants 1 and 3, died. Then, the plaintiffs’ got amended the plaint contending inter alia that the second defendant, during her life time, having satisfied with the services rendered by the second plaintiff in her old age and due to love and affection on her, bequeathed her 1/4th share in the suit schedule property in favour of the third plaintiff by executing Ex.A.1 – registered Will dated 19.04.1996 vide document bearing No.23/95 and that the said Will came into effect upon the death of the second defendant, i.e., on 06.02.1997. It is also contended that by virtue of the said Will, the third plaintiff is entitled to 1/4th share in the suit schedule property apart from his share in the property of his father. Thus, the third plaintiff claimed 1/4th share of the second defendant and also his 1/4th share in the suit schedule property (At some places, it is wrongly mentioned as second plaintiff instead of third plaintiff in the record.) 6. The first defendant filed additional written statement and denied that his mother executed Ex.A.10 – Will dated 19.04.1996 and registered it in favour of the second plaintiff. His specific case is that his mother died in the year 1996 and prior to her death, she was suffering from paralysis stroke as a result of which, she was completely bed-ridden and that his wife and children were attending on her. It is also his case that his mother could not recognize anybody for about eight or nine months prior to her death in the year 1996 and that she was never in a position to execute a Will and that the alleged Will is a forged and fabricated for the purpose of this case. It is also his case that his mother was not the absolute owner of the suit schedule property and that it is not even the self-acquired property of his father and, therefore, his mother had no right to execute any Will. 7. Basing on the above pleadings, the Court below framed the following issues and subsequently additional issues on 09.07.1999 and 08.08.2001 respectively, which are as follows:- Issues: Dt. 09.07.1999:- 1. Whether the suit property can be partitioned? 2. If so, whether the plaintiff is entitled to 1/4th share separately in the suit property? 3. Whether the suit property is self- acquired property of Late P.Narayan Swamy as alleged in the plaint? 4. Whether the suit property is purchased with the money of ‘Stridhana’ of the wife of D-1 as alleged in the Written Statement? 5. To what relief Additional Issues: Dt.08.08.2001:- 1. Whether the defendant No.2 is entitled to 1/4th share in the suit schedule property? 2. Whether the second defendant executed a registered will deed bequeathing his share in favour of the third plaintiff? 3. Whether the plaintiff No.3 is entitled for 1/4th share of the deceased defendant No.2 8. Evidence was let in. On behalf of the plaintiffs, the second plaintiff – P.Sabitha Rani was examined as P.W.1 and the third defendant – Smt. B.Girija was examined as P.W.2 and Exs.A.1 to A.10 were marked. On behalf of the defendants, the first defendant – P.Narsing Rao himself was examined as D.W.1 and D.Ws.2 to 5 were examined and Exs.B.1 to B.5 were marked. 9. The learned II Additional Senior Civil Judge, on appreciation of oral and documentary evidence on record, came to the conclusion that there is no evidence to show that the father-in-law of the first defendant paid an amount of Rs.10,000/- towards ‘Stridhana’ to his wife at the time of marriage and with that money, Late P. Narayan Swamy purchased the suit schedule property. It was also observed that no steps were taken by the first defendant to mutate the name of his wife after the death of Late P. Narayan Swamy and that if at all Ex.B.1 – Will is true and genuine document, the first defendant would have taken steps to see that the name of his wife is mutated in municipal records. Learned Judge also came to the conclusion that the presence of the second defendant at the time of alleged execution of Ex.B.1 – Will dated 21.12.1978 is improbable and that the evidence of the second defendant and the third defendant is far for satisfactory and thus disbelieved Ex.B.1 – Will. The learned Judge, on appreciation of evidence of P.Ws.1 and 2, believed the evidence of P.W.2 and consequently Ex.A.10 – Will dated 09.04.1996 executed by the second defendant and, accordingly, decreed the suit. Aggrieved by the same, the first defendant is before this Court as appellant. 10. Sri A. Ravinder Reddy, learned counsel for the appellant/first defendant, submitted that the income of Late P. Narayan Swamy was meager and that he had no money to purchase the suit schedule property and that at the time of marriage of the first defendant, his wife was presented with a sum of Rs.10,000/- towards ‘Stridhana’ and with that amount, Late P. Narayan Swamy purchased the suit schedule property and subsequently constructed the house and that the first plaintiff was a vagabond and he was not earning anything and that in view of the contribution made by the wife of the first defendant to construct the suit schedule property, Late P. Narayan Swamy executed a Ex.B.1 – Will dated 21.12.1978 bequeathing the suit schedule property in her favour. It is also submitted that though the suit schedule property was bequeathed to the wife of the first defendant by Late P. Narayan Swamy, on humanitarian grounds, the first defendant allowed his brother – the first plaintiff to reside in that house and that after the death of the first plaintiff, his wife and children were allowed to reside in a room and that does not mean that they have any share in the suit schedule property. It is also his submission that Late P. Narayan Swamy was having two other plots and that one of the plot was bequeathed to the first plaintiff and another plot to the first defendant and that his daughter was given money and gifts at the time of her marriage and since the first defendant himself was looking after his mother, no provision was made in favour of the wife of Late P. Narayan Swamy in the Ex.B.1 – Will dated 21.12.1978. It is also his submission that the first defendant has examined both the attestors of Ex.B.1 – Will dated 21.12.1978 and thus complied with Section 73 of the Indian Evidence Act, 1872, and proved Ex.B.1 – Will dated 21.12.1978. Relying on the judgment of the Apex Court in the case between Bharpur Singh Vs. Shamsher Singh[1], learned counsel submitted that by examining one or more attesting witnesses, the first defendant proved the execution of Ex.B.1 – Will dated 21.12.1978 and further submitted that when the plaintiffs’ are challenging the validity of the Will on the ground of fraud, coercion or undue influence, the burden to prove the same would be on the caveator. On the same proposition, he had relied upon the judgment in the case between Doulat Ram and others Vs. Sodha and others[2]. 11. Learned counsel further submitted that when the first defendant had specifically pleaded that his father executed Ex.B.1 – Will dated 21.12.1978, the plaintiffs have not filed any rejoinder and denied the averment made by the first defendant. It is also his submission that no specific issue was framed as to whether Late P. Narayan Swamy executed Ex.B.1 – Will dated 21.12.1978 or not and, therefore, the Court below ought not to have gone into that issue. It is also his submission that the Court below ought not to have compared the signature of Late P. Narayan Swamy available on the Ex.A.3 – Municipal Sanction Plan with his signature on Ex.B.1 – Will dated 21.12.1978 and that it is not safe to compare the signatures by the Court since the Court is not an expert to compare the same. Relying on the judgment of this Court in the case between Thumu Srikanth Vs. Akula Babu[3], learned counsel submitted that the mother of the first defendant could not have bequeathed her share in favour of the first plaintiff, since, in a joint family, even the father, being a coparcener, cannot device a Will of the joint family property or any part there of. It is also his submission that the Court below ought to have accepted the evidence of D.Ws.2 and 3. Referring to Ex.A.10 – Will dated 09.04.1996, it is submitted its execution is surrounded with suspicious circumstances and that there is no independent attestor to the said Will. It is also his submission that mere registration of Will is not a proof of its execution. It is also his submission that though P.W.1 deposed that her mother-in-law affixed her thumb impression on Ex.A.10 – Will dated 09.04.1996, but in fact, she was not present at the time of execution of the said Will. 12. Per contra, Sri K.Raghuveer Reddy, learned counsel for the respondent submitted that Late P. Narayan Swamy was working as Typist in Municipal Corporation of Hyderabad and that he was having sufficient income and that the suit schedule property was purchased for a sum of Rs.2,000/- and it cannot be said that Late P. Narayan Swamy was not having Rs.2,500/- and had no capacity to purchase the suit schedule property. His main submission is that Late P. Narayan Swamy retired in the year 1975 and the suit schedule property was purchased in the year 1964 and subsequently, he had constructed a house in a phased manner and gradually developed it. His main submission is that there is nothing on record to show that the first defendant’s wife was presented with as um of Rs.10,000/- towards ‘Stridhana’ and if at all the said version is true, the first defendant would have got the name of his wife mutated in the municipal records. His main submission is that the whole trouble started when the first plaintiff got issued legal notice to the first defendant demanding partition in the year 1996 and till such time, the alleged Will dated 21.12.1978 in Ex.B.1 did not see the light of the day. It is also his submission that Late P. Narayan Swamy was having a wife, two sons and one daughter and that no provision is made for the maintenance of his wife and no property has been given to the other children and that the dispossession made in Ex.B.1 – Will dated 21.12.1978 are unnatural, improbable and totally unfair. It is also his submission that D.Ws.2 and 3 were not summoned by Late P. Narayan Swamy and Late P. Narayan Swamy had never expressed his intention to execute a Will and that Ex.B.1 – Will dated 21.12.1978 is only on a paper torn from a note book and when there are several suspicious circumstances surrounding the execution of a Will, the burden lies on the propounder of the Will to remove such suspicious circumstances by adducing satisfactory evidence. In support of this contention, he had relied upon the judgment in the case between Malampati Suryamba and others Vs. Venigalla Koteswaramma and others[4] and submitted that mere proof of Will in accordance with law is not an end in itself and the Court has to satisfy its conscience and come to the conclusion that the Will propounded is truly the last testament of a person who died. For the same preposition, he had relied on the judgment in the case between Kalyan Singh Vs. Smt.Chotti and others[5]. He had also relied upon the judgment in the case between Ajit Savant Majagavi Vs. State of Karnataka[6] in support of his contention that the Court may compare the signatures in the case of necessity. Relying on the judgment in the case between Kali Prasad Agarwalla (died by LRs) Vs. M/s. Bharat Coking Coal Ltd.,[7], it is his submission that both the parties, with open hands, went to trial and from the evidence and suggestions given to the parties, the parties came to know that the main issue and dispute is with regard to the execution of Ex.B.1 – Will dated 21.12.1978 and execution of Ex.A.10 – Will dated 09.04.1996 and, therefore, even in the absence of any specific plea on such issue, no prejudice will be caused to the parties. It is also his submission that if really the suit schedule property was purchased with the money of the wife of the first defendant, nothing prevented Late P. Narayan Swamy to present the same to his daughter-in-law during his lifetime. It is also his submission that since the plaintiffs’ were denied the justice, the second defendant – mother of the first plaintiff had executed a Ex.A.10 – Will dated 09.04.1996 and that the same was attested by the first plaintiff and the third defendant, who is no other than the sister of the first plaintiff and the first defendant. It is also his submission that P.W.2 (third defendant) is natural witness and that she had accompanied her mother to the Registration Office and that she categorically deposed that her mother had put her thumb impression on Ex.A.10 – Will dated 09.04.1996. It is his further submission that Ex.A.10 – Will dated 09.04.1996 is a registered one and thus, the plaintiffs have proved the same. 13. In view of the above rival claims of both the parties, the points that arise for consideration in this appeal are (1) Whether there are any suspicious circumstances surrounding the execution of Ex.B.1 – Will dated21.12.1978; and (2) Whether the plaintiffs have proved the execution of Ex.A.10 – Will dated 09.04.1996. Point No.1:- 14. The relationship between the parties is not in dispute. The first plaintiff – Late P.Rama Rao and the first defendant – P.Narsing Rao are the sons and the third defendant – Smt. P.Girija is the daughter of Late P. Narayan Swamy and Late P.Kalavathi. The first plaintiff died during the pendency of the proceedings and his wife, sons and the daughter were brought on record as his legal heirs. During the pendency of the proceedings, the second defendant, who is the mother of the first plaintiff and defendants 1 and 3 and the wife of Late P. Narayan Swamy, also died. It is also not in dispute that Late P. Narayan Swamy purchased the suit schedule property under Ex.A.1 – Sale Deed 30.04.1964 for a total consideration of Rs.2,919/-. The recitals of Ex.A.1, which are not in dispute, go to show that Late P. Narayan Swamy has paid a sum of Rs.417/- as advance at the time of the agreement of sale and subsequently paid an amount of Rs.2,502/- on the date of registration of the sale deed. Ex.A.2 is the permit dated 02.07.1973 and Ex.A.3 is the sanction plan dated 02.07.1973, both issued by the Municipal Corporation of Hyderabad. Ex.A.4 is the Property Tax extract of Municipal Corporation of Hyderabad pertaining to years 1981 to 1985 which shows the payment of the property tax by Late P. Narayan Swamy. Ex.A.5 is the Death Certificate dated 13.04.1995 of Late P. Narayan Swamy showing that he died on 20.09.1979. The marriage of the first defendant was solemnized on 24.05.1964. Late P. Narayan Swamy retired in the year 1975. The third defendant – the only daughter of Late P. Narayan Swamy was married when she was minor in the year 1964 itself. The second defendant is the wife of Late P. Narayan Swamy who was suffering from Paralyses in 1995 and she died on 06.02.1997. The plaintiffs’ case is that since the suit schedule property is their joint family