Sec. 6 and Sec. 15 of Hindu Succession Act and Order LXI Rule 33 and 24 C.P.C. - Hindu Law - family arrangement - will deed - father died in the year 1983 leaving second wife, son and daughter and ancestral property - family arrangement irregularly to avoid disputes during his life time can not be considered as pre partition - Will deed for major portion of property is not valid as suit properties are ancestor properties in his hand - Will Deed not proved as the existence of Will not mentioned nor pre partition or family arrangement were taken in previous litigation between defendant and plaintiff - injunction suit was decreed in his favour - suit for declaration and injunction converted as suit for partition - since Rajamma died pending suit - son entitled to 3/4 share to the defendant - son and 1/4 share to the plaintiff - second wife of Rajanna - purchasers from plaintiff are entitled equities in her share = Metpalli Muthaiah....Appellant Metpalli Lasum Bai and others.... Respondents = 2014 ( January part ) judis.nic.in/judis

Sec. 6 and Sec. 15 of Hindu Succession Act and Order LXI Rule 33 and 24 C.P.C. - Hindu Law - family arrangement - will deed - father died in the year 1983 leaving second wife, son and daughter and ancestral property - family arrangement irregularly to avoid disputes during his life time can not be considered as pre partition - Will deed for major portion of property is not valid as suit properties are ancestor properties in his hand - Will Deed not proved as the existence of Will not mentioned nor pre partition or family arrangement were taken in previous litigation between defendant and plaintiff - injunction suit was decreed in his favour - suit for declaration and injunction converted as suit for partition - since Rajamma died pending suit - son entitled to 3/4 share to the defendant - son and 1/4 share to the plaintiff - second wife of Rajanna - purchasers from plaintiff are entitled equities in her share =

Family arrangments temporarily - in Brajendra Prasad Pradhan V. Sachidananda Pradhan1 relied

upon by defendant Nos.1 and 2, it was no doubt held that merely because family

members living in different houses in the same village by making payment of

house taxes separately it is for convenience and thereby suit for partition of

the houses cannot be dismissed from the plea set up of prior partition therefrom.

Section 6 of the Hindu Succession Act

Once there is no family arrangement and once there is no will proved by law

besides no right to land to execute as his own for not even to undivided share

as these are the coparcenery ancestral properties, in which Rajanna and his son

Muthaiah each got undivided half and after death of Rajanna his half share under

Section 6 of the Hindu Succession Act by notional partition goes to the Class-I

legal heirs that is the wife-plaintiff, son Muthaiah and widowed daughter

Rajamma each entitled to 1/3rd undivided share out of half of the properties as

the remaining other half of the coparcenery properties belonged to the 1st

defendant i.e., son of Rajanna by birth.

Section 15(2) of the Hindu Succession Act

No doubt the appeal is continuation of

suit and pending the same, the widowed daughter of Rajanna by name Rajamma being

the step daughter of the plaintiff died intestate and it is not the property

self acquired of said Rajamma, 2nd defendant; but for succeeded and inherited

from her father Rajanna out of coparcenery interest of Rajanna and under Section

15(2) of the Hindu Succession Act, from her death issueless and her husband pre-

deceased her and the property inherited from father, it devolved upon the other

heirs of father under Section 15(1) clause (d) i.e., Rajanna's wife and son

i.e., Lasumbai and Muthaiah equally to say in the properties out of Rajanna's

half share (since the widowed daughter of Rajanna died intestate and issueless

and her husband predeceased) entitled to equally by his second wife the

plaintiff-Lasumbai and Muthaiah-1st defendant to say 1st defendant got 3/4th

share and plaintiff got only 1/4th share.

Order LXI Rule 33 and 24 C.P.C. - Alternative relief for declaration of title only for declaration of share
Thus, though it is a suit for
declaration based on alleged oral family arrangement since not proved and so
called will also since not proved, alternatively declaration of the undivided
1/4th share out of the entire properties of Rajanna in favour of the plaintiff
can be granted without need of driving for another suit as per the settled
expressions of law including by the Apex Court (within power of the Court under
Order LXI Rule 33 C.P.C) vide decisions 2004(6) ALD 514 and 2011(5) ALT 790 and
the Apex Court's expression including of 1994 referred therein apart from such
power of the appellate Court for rendering complete justice between the parties
to the lis under Order LXI Rule 33 and 24 C.P.C. =

In the result, the appeal is allowed in part to the extent, while setting

aside the trial Court's decree and judgment in granting declaration of title and

injunction for entire plaint schedule properties of the present suit in favour

of the plaintiff (appeal-1st respondent Lasumbai);

however, by holding that as

those are part of the joint family properties of 1st defendant who got 3/4th

share and the plaintiff got 1/4th share from death of Rajanna and from death of

Rajamma respectively,

the plaintiff's entitlement is only to that extent so to

declare her title with no relief of injunction since undivided, thus by granting

preliminary decree for partition for said shares of plaintiff and 1st defendant

respectively,

so as to enable them to apply for final decree for division of the

entire properties in which the plaint schedule are part and in so dividing

plaintiff's 1/4th share to consider to the extent possible in the plaint

schedule respective items by equity for allotment in S.No.28/1 of Dasnapur

village Southern side 1/4th out of the total extent of Ac.12-31 guntas, firstly

upon the vendee for Ac.2-00 therein and for any other extent to claim by the 3rd

defendant subject to enforcement of the so called contract for sale between

plaintiff and said 3rd defendant; so also subject to proof of alienations in

other extents to claim such equities by such vendees out of the 1/4th share of

the plaintiff while dividing so to allot.

There is no order as to costs in the

appeal.

2014 ( January part ) judis.nic.in/judis_andhra/filename=10782

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

APPEAL SUIT No.178 of 1995

23-01-2014

Metpalli Muthaiah....Appellant

Metpalli Lasum Bai and others.... Respondents

Counsel for the Appellant : Sri M.V.S.Suresh Kumar

Counsel for the Respondents:Sri V.Manohar Rao, Sri T.S.Anand,
Sri S.Chandrasekhar
<Gist :

>Head Note:

?Cases referred:

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

APPEAL SUIT No.178 OF 1995

JUDGMENT:
This appeal is filed by defendant Nos. 1 and 2 in O.S.No.2 of 1991 in the suit
filed by the 1st respondent-plaintiff having been aggrieved by the judgment and
decree dated 15.11.1994 declaring the plaintiff as owner of the suit schedule
properties and for perpetual injunction against the defendant Nos.1 and 2 and
for costs.
The plaint schedule consists of 3 items of immovable property
including house of Adilabad District viz.,
1) Land bearing S.No.28 of Ac.4-16
guntas (also known as S.No.28/1) of Dasnapur (vill. & Mandal) with southern
boundary remaining land of Ac.2-00 guntas in S.No.28/1,
(2) land bearing S.No.9
of Ac.0-18 guntas of Mavala (Vill & Mandal) with eastern and southern boundary
remaining land of S. No.9 and
(3) House with panchayat Door No.3-4 of Savargaon
(Vill. & Mandal).
2. Before coming to the grounds of appeal attacking legality and
correctness of said decree and judgment allowing the suit claim by the trial
Court and what are the points that required for determination on being
formulated from rival contentions in this first appeal and its scope, for better
appreciation, the factual matrix of the case before trial Court is the
following:-
2(a). For convenience, the parties are being arrayed with their names as per the
cause title. The case of the parties, not in dispute, in brief, is as follows:
The plaintiff Lasumbai (issueless) is the second wife of Sri Metpally Rajanna,
who died in the year 1983.
The defendant Nos.1 and 2 by name Muttaiah and
Rajamma (died pending appeal) are son and daughter of said Rajanna through his
first wife by name Narsamma, who predeceased Rajanna.
Said Rajanna was the only
son of one Metpally Ramanna and Ramanna died intestate before the police action.
The police action was in fact during the years 1948-49 to say death of Ramanna
was prior to 1950 (elicited from cross-examination of D.W-1-1st defendant by
plaintiff on 31.10.1994).
2(b) It is also not in dispute that;
(1) the 1st defendant Muttaiah earlier
filed O.S. No.101 of 1987 on the file of District Munsif, Adilabad against
Lasumbai (plaintiff in present suit O.S. No.2 of 1991) as sole defendant, for
the relief of permanent injunction restraining her and her men from selling or
otherwise alienating or transferring the agricultural land in S.No.28/1 & 2
admeasuring Ac.6-16 guntas of Dasnapur (vill. & Mandal); S.No.1-E admeasuring
Ac.2-34 guntas of Batti Savargaon village; S.No.6 admeasuring Ac.1-24 guntas and
S.No.9 admeasuring Ac.1-13 guntas of Mavala village and house bearing No.3-4
with cattle shed situated at Batti Savargaon village; to one Janardhan Reddy,
S/o.Muthyam Reddy of Adilabad or any other persons with averments; he and his
father were co-parceners of Hindu Joint family by jointly cultivating with no
partition of the suit lands and after death of his father in 1983 leaving behind
him as sole co-parcener, he and his step mother Lasumbai have been jointly
cultivating land in S.No.28 of Dasnapur to its half extent each for matter of
convenience, even the entire suit properties devolved on him being sole co-
parcener and Kartha of joint family to mutate the lands in his name; but to his
surprise S.No.28 was sub-divided into 28/1 and 2 and shown him and his step
mother as separate pattedars in the Pahani of the years 1984-85 and 1985-86
which was done without his knowledge and he initiated proceedings to rectify the
record of rights in March, 1989 which is pending; that on 03.06.1982 Rajanna and
Lasumbai executed the document (marked in the suit as Ex.A-1) in favour of him
that they cultivate the land in S.No.28 of Ac.6-16 guntas till death and
thereafter he becomes absolute owner and exclusive possessor along with other
lands of Mavala village, house and cattle shed of Bhatti Savargaon and not to
alienate or transfer or sell the properties in their life time and the document
was in the custody of one Gangareddy (P.W-2 of the suit O.S. No.101 of 1987)
President of Gone Kapu Sangham and the defendant-Lasumbai with malafide
intention to cause loss to him entered into agreement with Janardhana Reddy,
S/o.Mutyam Reddy in 2nd week of August, 1987 to sell land in S.No.28/1 in an
extent of Ac.6-16 guntas and taking steps to register without right or title and
he apprehends that she may alienate other properties also behind his back to
cause loss and harassment, hence the suit for injunction not to alienate or
transfer to Janardhan Reddy or any other person.
(ii) Lasumbai as defendant in the suit O.S. No.101 of 1987 (plaintiff in O.S.
No.2 of 1991) filed written statement while denying the plaint averments but for
she is second wife of Rajanna and step mother of Muthaiah; contending that the
lands and cattle shed besides house No.4-58 of Batti Savargaon village were
separate and self-acquired properties of late Rajanna and Rajanna in his
lifetime settled his properties viz., lands and houses on his son Mutaiah,
widowed daughter Rajamma and herself (Lasumbai) in the year, 1974 by family
arrangement viz., Northern half portion of S.No.28 Ac.6-16 guntas of Dasnapur,
Ac.0-18 guntas in S.No.9 and house bearing No.4-58 on plaintiff besides eastern
portion of land in Mavala village, a portion in cattle shed No.3-4; S.No.1/2
admeasuring Ac.2-34 guntas of Savargaon village, Ac.0-18 guntas in S.No.7 of
Mavala village settled in favour of Rajamma and southern portion in S.No.28
measuring Ac.6-16 guntas of Dasnapur and Ac.0-18 guntas land in S.No.9 of Mavala
village besides house bearing door No.4-56 of Savargaon village settled on her
(Lasumbai) and ever since the family arrangement they are in exclusive
possession and enjoyment of respective properties and Rajanna also executed will
dated 26.07.1974 by abundant caution bequeathing his properties mentioned above
and S.No.6 of Mavala village in an extent of Ac.1-25 guntas once belonged to
Rajanna, it seems he lost possession about 25 years ago, that she and Muthaiah
never jointly cultivated the land in S.No.28 of Dasnapur village, that there are
clear cut ridges dividing the land in equal extents and each party is
cultivating separately; that late Rajanna was separate in mess and living with
Lasumbai till his death and by the time of death of Rajanna there was no joint
family in existence and question of Muthaiah becoming Kartha of joint family
does not arise; that the suit property has been rightly mutated in her name as
per family settlement and subsequent Will dated 24.07.1974 and she did not
receive any notice on so called proceedings for rectification of entries; that
she is illiterate woman and to her knowledge she did not execute any document
muchless (Ex.A-1) on dated 03.06.1982 and even assuming without admitting any
such document, it is void, inadmissible and unenforceable and legal rights
flowing from personal law cannot be curtailed in the manner alleged and it is
not explained why so called document was kept in the custody of Gangareddy when
it was executed. It was also contended that had Muthaiah only son of Rajanna
shows civility and accommodation, there would have been no necessity of living
separately. She however contended as exclusive owner of S.No. 28/1 with right
to sell for her maintenance and upkeep and she sold Ac.2-00 of said land to One
Sanjeeva Reddy and Mutyam Reddy prior to filing of the suit for Rs.40,000/- and
executed registered sale deed dated 30.08.1987 (no such sale deed is filed in
the suit even apart from she did not chose to come to witness box muchless any
of the alienees referred by her). While she denied that the properties are the
ancestral joint family properties, contended further that she being widow of
Rajanna besides Rajamma, widowed daughter of Rajanna are also entitled to share
under Hindu Succession Act even in said properties of Rajanna and had there been
no family settlement, even Muthaiah could not have sold a piece of land out of
his portion in S.No.28/2 to one Reddy under sale deed No.617/87 to say no joint
family property in existence and there is no cause of action to the suit to seek
relief of injunction not to alienate and to dismiss the suit.
(iii) On the main issue as to plaintiff Muthaiah is entitled for permanent
injunction, from the evidence adduced by Muthaiah as P.W-1, Ganga Reddy as P.W-2
and A.Mohan Reddy as P.W-3 with reference to said agreement dated 03.06.1982
marked as Ex.A-1, the Kasra Pahani of S.No.28 for the year, 1954-55 as Ex.A-2
of S.No.28 of Dasnapur village, khasra pahani of the year, 1954-55 as Ex.A-3;
Khasra Pahani of the year, 1954-55 for the lands at Mavala as Ex.A-4; C.C of
Pahanis for S.No.28 of Dasnapur village of the year 1983-84 as Ex.A-5 and of the
year 1985-86 as Ex.A-6, the suit was decreed in favour of Muthaiah and against
Lasumbai by the trial Court and the same was made final without any appeal. The
findings in said suit O.S. No.101 of 1987 were that from the admitted
relationship between the parties, what was saying by Lasumbai of some of the
properties are self-acquired by Rajanna was disproved by Muthaiah from Khasra
Pahanis for the years, 1954-55 in the name of Ramanna (father of Rajanna) to say
those are ancestral and not self-acquired of Rajanna; what was contended by
Lasumbai of family arrangement in the year, 1974 and thereafter there was no
joint family property by the date of death of Rajanna and in the family
arrangement; Southern half in S.No.28 (sub-divided as S.No.28/1) of Dasnapur
village an extent of Ac.6-16 guntas, Ac.0-18 guntas in S.No.9 of Mavala and
house in Door No.3-4 given by Rajanna in her favour and she becomes absolute
owner and got right to sell for her maintenance and sold Ac.2-00 guntas to
Sanjeeva Reddy and Mutyam Reddy before filing the suit on 30.08.1987. Coming to
the Ex.A-1 document dated 03.06.1982 executed by Rajanna and Lasumbai in favour
of Muthaiah, from the evidence and her contest as if she is illiterate and her
thumb impression was obtained forcibly on Ex.A-1 by Yes-men of Muthaiah and the
document will not give any right to Muthaiah and not take away her right in the
property settled on her by her husband referred supra; from that she did not
chose to deny the thumb impression put by her on the document Ex.A-1 (dated
03.06.1982) and though P.W-2 and P.W-3 the caste elder and the scribe of the
document also examined in proof of it; the suit being for perpetual injunction
against the defendant restraining her from alienating the property legality or
otherwise; the document need not be considered; from her contention of Rajanna
lived with her till his death and settled some properties to the plaintiff, some
property to her and some property to his widowed daughter and after death of
Rajanna each became owner. There is a cross-examination of Muthaiah (P.W-1) by
her where Muthaiah admits that there is ridge in between the land bearing
S.No.28 and he is in possession of northern half and Lasumbai is in possession
of southern half and while denying they are cultivating so separately since 1974
however admits as cultivating for the past 10 years and Rajanna died 7 years
back and that out of the Northern half, he made 40 plots and except plot No.7
and 8 he sold the remaining without consent of Lasumbai and also deposed by P.W-
1 that his father Rajanna when wanted to alienate the property, he objected to
it through caste elders including P.Ws 2 and 3 Ganga Reddy, Mohan Reddy and
there Ex.A-1 document was executed by Rajanna and Lasumbai; that she also filed
a police complaint against him for theft of her properties and he also admits
that the defendant Lasumbai already sold Ac.2-00 of land in S.No.28 prior to the
suit though he does not know the vendees are Sanjeeva Reddy, Mutyam Reddy and
admits that he did not file any suit for cancellation of said sale by Lasumbai.
The Court further observed while answering issue No.1 from page 16 onwards of
the judgment (Ex.A-4) that the Advocate for Lasumbai represented no evidence to
lead by her, hence to close stating she would file comprehensive suit for
declaration and after the matter pending for arguments stage, said Lasumbai
changed advocate and filed petition to reopen in I.A. No.114 of 1990 to permit
her to adduce evidence and the representation by her to close evidence is
without information, thereby she could not lead evidence and is advised to
produce her evidence and the same was opposed by Muthaiah by his counter saying
Lasumbai and her brother regularly attending the Court and got knowledge and
because instructed the advocate to close and the Court closed accordingly the
evidence, it cannot be reopened; as the suit is only perpetual injunction
restraining Lasumbai from alienating the family properties and not even for
cancellation as some of the properties were alienated by Lasumbai to Sanjeeva
Reddy, S/o.Mutyam Reddy besides she also sold some of the properties which are
out of S.No.28 and so far as that Ac.2-00 already sold by Lasumbai prior to the
filing of injunction suit no relief can be granted and as she cannot get her
rights to be declared in the injunction suit setting up the family arrangement
but for by separate suit for declaration wanted to file and represented through
her advocate already so to prove therein, there are no grounds to reopen her
evidence by allowing the belated application in the arguments of the suit in
progress in granting the relief of perpetual injunction while giving liberty to
her to file suit for declaration. Thus, the decree in suit for injunction no
way resjudicata to the present suit for declaration and consequential
injunction, but for to consider how far the findings therein operate as obiter
to any extent of non-rebuttal by cogent evidence herein against the evidence
therein.
2(c) As the declaratory suit of Lasumbai in O.S. No. 2 of 1991 since decreed,
impugning it the present appeal suit as A.S. No.178 of 1995 is filed. The fact
of the earlier litigation between the parties covered by judgment Ex.A-4 proves
that the suit properties are not the self acquired properties of Rajanna, but
for part of the joint family properties of Muttaiah, Rajanna and his father
Ramanna. The execution of Ex.A-1 agreement dated 03.06.1982 of O.S. No.101 of
1987 covered by Ex.A-4 judgment; by Rajanna and Lasumbai to Muthaiah from not
denied her thumb impression and signature of Rajanna therein and not proved of
the same was obtained by alleged force in support of her contention either by
letting any evidence or from the cross-examination of P.Ws 1 to 3 as can be seen
from the finding between the parties in this regard covered by the Ex.A-4
judgment herein. It is not even the case of Lasumbai (plaintiff herein) that in
that Ex.A-1 document of Ex.A-4 judgment, there was any reference of the so
called family arrangement or will of 1974. The document not seen light in the
suit to discuss anything further thereon and in the written statement of
Muttaiah and Rajamma herein there is no plea even referring to it. Thus, the
only thing to be seen is whether there was as pleaded by plaintiff-Lasumbai any
oral family arrangement by Rajanna of the year 1974 of the joint family
properties and its binding nature and also the truth, genuineness and
enforceability of will said to have been executed by Rajanna also in the year
1974 and therefrom there was any separate possession and enjoyment of the land
in S.No.28/1 of Dasnapur Northern half i.e., Ac.6-16 guntas by Muthaiah and the
southern half of Ac.6-16 guntas by Lasumbai with ridges in between the same with
respective separate enjoyment or it is only for sake of time being enjoyment and
not pursuant to any family arrangement or partition or the like.
3) The facts of appeal suit lis with reference to the above is the following:
3(a) The case of the plaintiff Lasumbai in brief is that
during the life time of
Rajanna, he settled his entire properties, without keeping any property with
him, in favour of her, Muthaiah and Rajamma (respectively) separately (being his
self acquired) and ever since the date of said oral family arrangement, all the
parties to the suit have been in exclusive possession and enjoyment of their
respective properties in own right and said Rajanna also as an abundant caution
executed a will Ex.A-1 dated 24.07.1974 (registered document No.12/1974)
bequeathing his properties on the same lines of said earlier oral family
settlement and the will was registered. Though no date or month of said family
arrangement even of Telugu Almanic or even of fasali mentioned. Pursuant to the
will, name of Lasumbai was also mutated after enquiry by tahsildar in the
revenue records (after Rajanna's death) in relation to her properties and as per
oral settlement and will, plaintiff is the exclusive owner of the properties.
Late Rajanna was separate in mess and living along with the plaintiff till his
death and by the time of death of late Rajanna, in 1983, there was no property
(joint or separate) existing in his favour. As the matters stood thus, an
extent of Ac.2-00 out of the share of the plaintiff Lasumbai was sold away by
her to one P.Sanjeeva Reddy (not made party to the suit) and executed a
registered sale deed dated 27.08.1987 (not filed the document to know the
recitals and as to it was prelitum or pendentilitum document to date of suit in
O.S. No.101 of 1987 against her) and the remaining land of her share of Ac.4-16
guntas was also sold away by her to P.Janardhan Reddy, S/o.Mutyam Reddy (3rd
defendant) by an agreement for sale dated 15.07.1987 (The agreement not even
filed by her and there is no mention of this agreement transaction in her
written statement in O.S. No.101 of 1987 if at all true and genuine) and
received an amount of Rs.60,000/- on various dates and handed over possession of
the same. The plaint averments of her further read that in O.S. No.101 of 1987
filed against her by Muthaiah for perpetual injunction, learned District Munsif
held in Ex.A-4 judgment and decree dated 16.07.1990 that she is entitled to file
a comprehensive suit for declaration to the extent of the properties in her
possession and hence the suit claim.
3(b). The case of Muthaiah and Rajamma (since died) in nutshell is that
they all
constitute joint hindu family, out of which their father Rajanna and the 1st
defendant were co-parceners and the plaint schedule properties are the co-
parcenary properties of said joint Hindu family, that after death of Rajanna in
the year 1983, the 1st defendant became sole co-parcener of the joint hindu
family; that said properties are inherited from Rajanna's father Ramanna and
Rajanna neither settled any of the properties nor executed any will muchless on
24.07.1974; that plaintiff-Lasumbai got mutated as pattedar for the land to an
extent of Ac.6-16 guntas in Sy.No.28 of Dasnapur in her name in collusion with
revenue authorities against the provisions of law behind their back which is
void; that before death of Rajanna, who is unable to attend the field work,
allowed the plaintiff Lasumbai to cultivate the land bearing Sy.No.28 of
Dasnapur to its half extent apart from a part of land bearing Sy.No.9 of Mavala
village and land bearing No.1/84/A of Savargaon village for convenience and to
avoid disputes; that plaintiff Lasumbai with an oblique motive executed an
agreement for sale in favour of the 3rd defendant-Janardhana Reddy even without
right to alienate the joint family properties and she stealthily effected the
previous sale also in favour of Janardhana Reddy without their knowledge and
consent and with ulterior motive to cause loss to them despite the permanent
injunction decree against her by showing lesser consideration; even though the
market value of the said properties was more than Rs.75,000/- in collusion with
said vendees and prayed to dismiss the suit.
3(c). The case of defendant No.3 Janardhana Reddy is that he purchased the land
measuring Ac.4-16 guntas in S.No.28 of Dasnapur village for a consideration of
Rs.88,000/- having paid Rs.60,000/- out of it by an agreement for sale dated
15.07.1987 from Lasumbai (plaintiff) and possession was already handed over to
him, she was to execute sale deed in his favour on receiving balance sale
consideration but for Muthaiah in O.S. No.101 of 1987 obtained perpetual
injunction respecting the properties.
4. From the pleadings, trial Court framed following issues:-
i) Whether the plaintiff is owner of land bearing Sy.No.28/1 admeasuring Ac.4-16
guntas situated at Dasnapur village, wet land bearing Sy.no.9 admeasuring 1/3 of
its extent situated at Mavala village and house bearing No.3-4 situated at
Savargaon village?
ii) Whether the plaintiff is entitled for relief of perpetual injunction?
iii) Whether the properties as enumerated in para No.4 of the plaint are
separated and self acquired properties of late Metpalli Rajanna?
iv) Whether the late Rajanna settled properties in favour of plaintiff,
defendant Nos.1 and 2 in the year 1974 as stated in para No.5 of the plaint?
v) Whether late Rajanna executed will dated 24.07.1974 if so, whether it is
valid?
vi) Whether the plaintiff has perfected her title by adverse possession over the
suit properties?
vii) Whether the plaintiff under valued the suit properties and paid
insufficient court fee?
viii) Whether the defendants 1 and 2 are entitled for compensatory costs?
ix) To what relief?

5. From above pleadings and issues and from the evidence adduced before the
trial Court on record that of plaintiff Lasumbai as P.W.1 and T.Rajeshwar Rao
(one of identifying witness for registration of Ex.A-1 will before the Sub-
Registrar) as P.W-2 and the 1st defendant Muthaiah as D.W.1 and Bhooma Reddy
(brother-in-law of D.W-1) as D.W-2; relying upon by the plaintiff Exs.A-1 to A-4
viz., will dated 26.07.1974; Pahanis of 1983-84 for Mavala and Dasnapur village
and the C.C of Judgment in O.S. No.101 of 1987; by the defendants 1 and 2,
Exs.B-1 to B-9 viz., C.C of Khasra Pahanis for the years 1954-55 for S.No.28 of
Dasnapur, S.Nos. 6 & 9 of Mavala village, S.No.1/E of Savargaon and pahanis of
the years 1973-74 to 1975-76 & 1980-81 & 1981-82 of S.No.28 Dasnapur; the 3rd
defendant did not adduce any evidence and did not even file any contract for
sale or contract of sale if at all subsequently obtained from plaintiff for any
land in S.No. 28 of Dasnapur; the trial Court by its decree and judgment granted
the reliefs in favour of plaintiff and against the defendant Nos.1 and 2 with
the observations that-
6) The suit claim for declaration and injunction is based on a family
arrangement (oral) accompanied by a document in the shape of a will (Ex.A-1),
pursuant to the claim of the plaintiff of the oral family arrangement 9 years
prior to the Rajanna died in the year 1983, the 1st defendant admitted about
plaintiff in possession of the properties shown in the plaint schedule and he is
in possession of properties said to have been given to him in the family
arrangement and as D.W-1 in his evidence stated that his father made such
arrangement and allowed plaintiff to cultivate the lands, to avoid family
disputes as state of health of Rajanna was not good in saying Rajanna allowed
the plaintiff to cultivate some lands and also allowed his sister to cultivate
some lands by which he admits their possession and separate enjoyment of
respective properties which are said to have been shown in the will and also
stated in his chief examination that they are living separate because his wife
was not on good terms with plaintiff;
there cannot be any doubt therefrom that
there was a family arrangement whether it was with a view to save the family
from disputes or otherwise.
Apart from this, 1st defendant (D.W-1) in his
evidence stated that he is cultivating half of the land in Mavala and plaintiff
and her brother are cultivating the remaining half of Mavala village and his
father Rajanna allowed his step mother to cultivate Ac.6-16 guntas of land of
Dasnapur which is on southern side while allowed him to cultivate remaining half
on Northern side and his father asked him to cultivate Ac.0-04 guntas of land in
Mavala village, he also stated that plaintiff was living in Savargaon village in
the house of 2 tasmas and this arrangement was made in the presence of elders at
one breathe and with no elders at other breathe and again says his father made
the arrangement about 20 years back is not known, by pleaded ignorance of saying
he does not know anything about it. Apart from it, he admitted about his sale
of Ac.2-00 of land out of Northern half of Dasnapur village to one P.Sanjeeva
Reddy under sale deed and put the vendee in possession and he also made plots of
the Southern side remaining in his occupation and plaintiff also sold Ac.2-00
out of the southern side land to Sanjeeva Reddy, by which is in proof of the
factum they are enjoying separately as absolute owners respective extents
otherwise could not have sold the Dasnapur lands and this admission of 1st
defendant that Rajanna allowed them to cultivate the lands to separate from each
other and they have been in exclusive possession is clear that the family
arrangement is true.
Coming to the next question about execution of the will,
he admitted in the cross-examination of the signatures on the will is that of
his father and P.W-2 T.Rajeswara Rao a retired teacher is a good friend of his
father and said Rajeswara Rao deposed about there was a panchayat in the village
regarding lands of Rajanna in the life time of Rajanna and as per advise of
elders, Rajanna settled lands to plaintiff, 1st defendant and 2nd defendant by
oral arrangement and Rajanna told him that he would execute will in favour of
the family members having come to his house in the evening and on next day he
should go to Sub-Registrar office and accordingly on next day he went to Sub-
Registrar Office where Rajanna, Bojja Rajeswara Rao, besides document writer
Amarullah Khan (clerk under one Rajeswara Rao) drafted the will as per narration
of Rajanna in his presence and read over to Rajanna and after agreeing to
correctness, Rajanna put his signatures in Hindi and Rajeswara Rao asked him
whether he was prepared to identify him and he answered in the affirmative and
B.Rajeswara Rao and Gulam Mohammed attested the document and he identified
Rajanna before the Sub-Registrar and P.W-2 stated that Rajanna was hale and
healthy at that time and the bequest in the will in favour of plaintiff and
defendants 1 and 2 was as per the family arrangement and thereby it is
established by plaintiff that Rajanna executed Ex.A-1 in sound and disposing
state of mind.
The trial Court further observed from para-18 that in the Orissa
High Court Judgment in Brajendra Prasad Pradhan V. Sachidananda Pradhan1 relied
upon by defendant Nos.1 and 2, it was no doubt held that merely because family
members living in different houses in the same village by making payment of
house taxes separately it is for convenience and thereby suit for partition of
the houses cannot be dismissed from the plea set up of prior partition therefrom
and the other decision of Rama Chandra Rambux V. Chempabai2 as to how the
evidence with regard to the execution of a will should be appreciated and the
other decision of our High Court Vandavasi Karthikeya @ Krishna Murthy V.
Kamalamma3 with the contention therefrom by the counsel for defendant Nos.1 and
2 of there was no acceptable evidence inspiring to support the case of the
plaintiff of family arrangement and that of Rajanna executed Ex.A-1 will and
contended that property is ancestral property and the will which is beyond his
share, is incorrect.
In fact these contentions are all academic in nature
because plaintiff is not relying upon Ex.A-1 will alone but for on family
arrangement between the parties prior to the execution of the will and in the
light of the family arrangement evidenced by execution of Ex.A-1 will as a proof
positive the family arrangement pleaded can be taken as proved by plaintiff as
the defendants 1 and 2 also in exclusive possession of their respective extents,
it is not open to say there was no family arrangement and Ex.A-1 will is not
valid under law and accordingly held that plaintiff is entitled to a declaration
of title prayed for with perpetual injunction being the owner of the property
while directing each party to bear their own costs.
The sum and substance of
the trial Court's judgment is will is also proved from what P.W-2 only
identifying witness before the Sub-registrar since has spoken about his presence
and witnessing execution of will by Rajanna and from evidence of D.W-1 (1st
defendant) in his cross-examination about their separate possession and
enjoyment though stated as for convenience sake at the instance of Rajanna that
supports claim of the plaintiff as outcome of oral family arrangement which is
valid and that is lending support from alienation of part of the respective
extents out of the enjoyment by the 1st defendant and the plaintiff which is but
for family arrangement of having rights held not possible.
7) It is said judgment and decree of the trial Court with above finding impugned
in the appeal with sum and substance in the grounds of appeal in nutshell that
said judgment and decree of trial Court is contrary to law, weight of evidence
and probabilities of the case; that the trial court has erred in holding that
1st respondent-plaintiff clearly established said family arrangement by Rajanna,
that also referred in the Ex.A-1 registered will; as if alleged family
arrangement was made by late Rajanna though same is not proved and not true but
for said arrangement is a story invented by the plaintiff for purpose of the
suit.
It is also contended that alleged will is brought into existence by
plaintiff at the instance of her brother.
It is also contended that the trial
Court ought to have seen what prevented plaintiff and Rajanna to keep the will
in dark for several years and the trial Court should have seen from the earlier
suit O.S. No.101 of 1981 (Ex.A-4 judgment) observations regarding Ex.A-1 marked
which is an agreement dated 03.06.1982 entered between Rajanna, Lasumbai
(plaintiff) and Muthaiah (1st defendant) in O.S. No.2 of 1991, wherein even
alleged family arrangement of the year 1974 has no reference muchless the will
of 1974 which belies so called family arrangement and proves said agreement
prohibits any alienation of properties by Lasumbai and Rajanna in their life
time, but for enjoyment.
It is also contended that except P.W-1 plaintiff
interested testimony there is no worth evidence on record either to prove Ex.A-1
will or the so called family arrangement and instead of so holding the trial
Court went wrong in wrongly shifting the burden on the defendants though it is
for the plaintiff to establish and the trial Court also should have held that
the suspicious circumstances surrounding Ex.A-1 alleged will are there while
Rajanna was living with Lasumbai the plaintiff, to say her influence as
propounder to dispel and the trial Court should have seen that Rajanna has no
right to execute any will for the properties are not his self acquired and
separate, but of joint family properties which totally he cannot bequeath and
thereby the alleged bequeaths as if he is owner of entire property are
unenforceable and outcome of inconsistency to dispose of by Rajanna even his
share under Section 30 of the Hindu Succession Act and even under Section 6 of
Hindu Succession Act after death of Rajanna in the year 1983 his share alone
that could be succeeded by the three legal heirs of him being son, daughter and
wife each 1/3 and that in Ex.A-1 there is no any revocation clause to construe
as a will to say the recitals are created outcome and otherwise for not duly
stamped and not registered, the contents cannot be gone into.
It is also the
contention that, had there been any truth of so called family arrangement and
separate possession and enjoyment with rights therefrom saying of the year 1974
there must be mutation therefrom and not from the year 1983-84 to belie so
called family arrangement and it is the contention therefrom that the trial
Court should have dismissed the plaintiff's suit for declaration and injunction
also with the finding of no injunction can be granted among members of joint
family or co-owners in favour of one against the other, hence, to allow the
appeal by dismissing the plaintiff's suit claim and setting aside the trial
Court's decree and Judgment.
8) The respective counsel for plaintiff, 1st respondent to the appeal and other
respondent (3rd defendant) contended that the trial Court decree and judgment
are just and well considered outcome of the family arrangement is proved and
placed as many as 6 decisions of the Apex Court in support of considering the
case facts for existence of said family arrangement of AIR 1955 SC 481, AIR 1966
SC 323, AIR 1966 SC 1836, AIR 1971 SC 1337, AIR 1976 SC 807 and (2003)8 SCC 740;
and therefrom sought for dismissal of the appeal.
9) Now, the points that arise for consideration to decide the appeal lis are:
i) Whether the properties covered by the plaint schedule among other extents are
the self-acquired properties of Rajanna as contended by the plaintiff (second
wife of Rajanna) or the joint family co-parcenery properties of Rajanna and the
1st defendant (defendants 1 and 2 are the son and daughter of Rajanna through
late 1st wife) right from father of Rajanna by name Ramanna, who died prior to
1950?
ii) Whether there was any family arrangement (oral) in between Rajanna, his
wife, son and daughter (plaintiff, D-1 and D-2 with Rajanna) as pleaded by the
plaintiff by allotment of respective shares creating respective rights and if
so, how far it is binding on the parties?
iii) Whether the will Ex.A-1 said to have been executed by Rajanna is duly
executed by Rajanna with intent to make bequeaths referred therein and in sound
and disposing state of mind and as a last will and testament and how far the
same is proved on due execution in sound and disposing state of mind as a last
bequeath and its enforceability for entire properties and whether acted upon?
iv) How far the findings in the earlier suit between the parties in O.S. No.101
of 1987 covered by Ex.A-4 judgment not in dispute between the parties are
binding in deciding the present lis?
v) Whether the trial Court's decree and judgment holding that there was an oral
family arrangement and also proved by subsequent execution of Ex.A-1 will are
unsustainable and requires interference by this Court while sitting in the
appeal and if so to what extent and with what observations?
vi) To what result?
10) From the above, as the points 1 to 5 of the appeal lis are interconnected,
to avoid repetition of the facts and for convenient disposal, these are taken up
together.
Admittedly in the suit filed by the appellant herein as plaintiff in
O.S. No.101 of 1987 for permanent injunction relief against the 1st respondent
to the appeal (sole plaintiff of O.S. No.2 of 1991) as sole defendant and while
saying without prejudice to the plaintiff's such right of filing suit for
declaration of right and title claimed over the properties which are subject
matter of the suit, the permanent injunction is granted and it was in so
granting categorically held that all the properties referred therein and the
plaint schedule properties in the present suit O.S. No.2 of 1991 are part of the
ancestral properties of Rajanna and Muthaiah and not the self-acquired
properties of Rajanna father of Muthaiah, since those were the family properties
that were earlier standing in the name of father of Rajanna by name Ramanna and
the Ex.A-2, A-3 and A-4 khasra pahanis filed therein of the year 1954-55 for
S.No.28 of Dasnapur village for the total extent of Ac.12-36 guntas was recorded
in the name of Ramanna so also of Butta Savargaon and Mavala village lands in
the khasra Pahanis of said year (Ex.B-1 to B-3 in this suit).
The Ex.A-4 in the
suit is the judgment of O.S. No.101 of 1987. At pages 11 and 12 of the judgment
answering issue No.1, it was held to the finding on entitlement of permanent
injunction against any alienation that those are the joint family co-parcenary
properties. Said finding is conclusive. Even for any reason, there was no
conclusion by that finding for this suit, in this suit; among the Exs.A-1 to A-4
and Exs.B-1 to B-9 marked before the trial Court, the plaintiff Lasumbai,
W/o.Rajanna did not file any documents to show any of the properties covered by
the subject matter of the lis are the self-acquired properties of her husband
Rajanna muchless even by any partition between Rajanna and Ramanna despite Ex.B-
1 to B-3 Khasra Pahani which are equal to Exs.A-2 to A-4 Khasra Pahanis filed in
O.S. No.101 of 1987 covered by Ex.A-4 judgment relied upon by the plaintiff
herein, these khasra pahanis for the year 1954-55 show those are standing in the
name of Rajanna's father Ramanna as pattedar.
11) The Khasra Pahanis for the year 1954-55 which is a permanent revenue record
(as laid down by the Division Bench of our High Court in the case of Joint
Collector, Ranga Reddy District V. Syed Ahmed Hasan and Others reported in
2011(3) ALT 701-DB, following the decision of Apex Court in Sikarchand Jain Vs.
Digambar Jain AIR 1974 SC 1178, is a record of right and title and it cannot be
altered without there being any proceedings issued by competent authority for
correction.
12) As per Ex.B-1 khasra pahani of the year 1954-55 of Dasnapur (sincila No.74,
survey No./hissa No.28 as per column No.3, the extent is shown in Sethwar total
Ac.12-32 guntas, Regadi land and Patta land, the name of the pattedar Mattapalli
Ramanna, as per column Nos.7 and 8 and even at column No.13 noted the name of
M.Ramanna, S/o.xxx appears as Rajalingam of Savargaon village and the name of
Mattapalli Rajanna, S/o.Ramanna of Savargaon village was subsequently
incorporated by rounding the name of Ramanna. It is for the reason that after
death of the original pattedar Ramanna as proved from D.W-1 cross-examination by
palitniff that Ramanna died before the police firing which was in the year 1949
and the khasra pahani was of the year 1954-55 in noting for the Rajanna is the
sole legal heir being the only son of Ramanna since then died. It is crystal
clear so far as the land in S.No.28 concerned, the ancestral property in the
hands of Mattapalli Rajanna even by the year 1954-55 as per said Ex.B-1 khasra
pahani and not the self acquired property of Rajanna and the contention of
plaintiff that it was the property of Rajanna is belieing from said unrebutted
documentary evidence. Even coming to Ex.B-2 khasra pahani of the year 1954-55
of Mavala village, the lands in S.No.6 of Ac.0-8-9 guntas and in S.No.9 of Ac.1-
13 guntas also the patta lands of said Ramanna of Savargaon village as per
column Nos.1, 3, 7, 8 and 13 and at column No.13 the name of Ramanna rounded of
and Rajanna, S/o.Ramanna was included for the two items and also another extent
of S.No.9A of Ac.0-7 guntas or so. Similarly as per Ex.B-3 khasra pahani of
1954-55 of Savargaon village for S.No.1, the extent is Ac.0-39 guntas and for
S.No.1/E the extent is Ac.0-19 guntas and the pattedar is Mattapalli Ramanna,
S/o.Rajalingam of Savargaon village. Therefore, said properties in which plaint
schedule are part are none the self-acquired properties of Rajanna but for the
ancestral properties of Rajanna and his son-Muthaiah, since those were standing
in the name of Ramanna as pattedar (i.e., the grand father of 1st defendant
Muthaiah and father of Rajanna). It is in fact, the parties are Hindus governed
by Hindu Succession Act, 1956 and prior to that under the un-codified Hindu Law
of the Mithakshara coparcenary to say by the time Mattapalli Ramanna died
intestate in 1949-50 leaving behind him his son Mattapalli Rajanna and the
Rajanna's son Muttaiah (born in 1930 or so from his age shown 60 years in the
plaint filed in O.S. No.2 of 1991 in the year 1990) as the other surviving
coparcener. From this factual background with proof, even coming to Ex.B-4 to
B-9 revenue pahanis concerned, Ex.B-4 is the No.3 pahani of the year 1972-73
speaks for Dakala No.99 survey No.28, total extent of Ac.12-32 guntas, the name
of pattedar shown as Mattapalli Rajanna. It is to be read with reference to
Ex.B-1 facts discussed supra to say Rajanna's name mutated not because he is
absolute owner but for family manager of coparcenery of Rajanna, S/o.Ramanna and
son of Rajanna by name Muthaiah and it further reveals the entire extent by
showing mutated in the name Rajanna to say there was no any partition between
Rajanna and his son Muthaiah, same is also the position with reference to the
Ex.B-5 No.3 pahanis of the year 1973-74; Ex.B-6 No.3 pahani of the year 1974-75;
Ex.B-7 No.3 pahani of the year 1975-76; Ex.B-8 No.3 pahani of the year 1980-81
and also Ex.B-9 No.3 pahani of the year 1981-82 so far as this S.No.28, total
extent of Ac.12-32 guntas concerned. It is to say there was no any partition
between Rajanna and Muthaiah muchless any family arrangement and allotment by
division any extents out of it during life time of Rajanna upto 1983 (when he
died) as there was no any mutation for any respective extents out of it showing
as allotted by division by arrangement. If really there was the alleged family
arrangement in 1974, there could be mutation by sub-division or otherwise with
the names for respective extent as per such arrangement. It is with reference
to it, if Ex.A-3 and A-2 considered, so far as the land of Dasnapur in S.No.28
concerned, even from the revenue record Ex.A-3 of the year 1983-84 the certified
copy issued was only in the year 1985 on dated 23.01.1985 with green ink
signature of the Tahsildar thereon and there is no mention of the name of
Lasumbai and Muttaiah for southern and northern each Ac.6-16 guntas but for
showing Rajanna to the entire extent of S.No.28 of Ac.12-31 guntas and again
showing only Lasumbai. It shows it is cause included after death of Rajanna.
Had there been a family arrangement, when it is the case of the plaintiff
Lasumbai herein and also in the previous suit covered by O.S. No.101 of 1987 of
alleged family arrangement prior to 1974 or in the year 1974 prior to alleged
registered will Ex.A-1 in the suit dated 24.07.1974, there is no mutation of
alleged elderly so called oral family arrangement of any division in the year
1974 or after 1974 even from this entry in Ex.A-3. It is because it is the
specific case of Lasumbai in this suit as well as in the earlier suit that
Rajanna was not allotted any properties separately but for herself as wife of
Rajanna by Rajanna and to son of Rajanna by name Muthaiah besides daughter of
Rajanna by name Rajamma and when it is her case that she was allotted Ac.6-16
guntas being the half and Muthaiah was allotted the remaining Ac.6-16 guntas
leave about the confusion in the impugned judgment of this appeal in mentioning
northern for southern as it is there in Ex.A-4 judgment of O.S. No.101 of 1987
specifically including in the plaint pleading herein of she was allotted the
southern half and Muthaiah the northern half, the mutation must be in the name
of Lasumbai and Muthaiah respectively and shall not be in the name of Rajanna
for the total extentm, apart from half of the extent again in the name of
Lasumbai without showing even for the remaining half in the name of Muthaiah.
It belies the very claim of the plaintiff Lasumbai from this own document of her
Ex.A-3 of the Tahsildar came to the village and made enquiry regarding the oral
family arrangement and mutated the names of Lasumbai and Muthaiah for respective
each half taken as per respective family arrangement in the life time of
Rajanna. Further, even coming to Ex.A-2 revenue record relied on by Lasumbai
plaintiff for Mavala village which is of the year 1983-84, the name of
Mattapalli Rajanna, S/o.Ramanna is noted for the year 1983-84 for the total
extent of Ac.1-13 guntas and at column No.9 there is mention about registered
will deed 12 of 1974 dated 26.07.1974 and again out of it, the name of Lasumbai
wife of Rajanna shown for the self-same land for Ac.0-18 guntas and at column
No.11 there is a reference "due to sanctioned of partitioned decree patta lands
Digam Ijafa". It is unknown why not for extents bequeathed under the so called
will in the name of Muthaiah and Rajamma the son and daughter of Rajanna besides
Lasumbai name was only noted as wife of Rajanna, for the claim of Lasumbai the
bequeaths include to them in this survey number and not to her alone. In fact
there is no any partition muchless sanctioned by partition decree so to cause
mention. It is nowhere speaks even in Ex.A-2 that there was any oral family
arrangement or oral partition before elders but for reference to will deed and
partition thereunder if at all. It is not the case of Lasumbai either in the
plaint or in her evidence as P.W-1 muchless in the written statement with no
evidence as defendant in O.S. No.101 of 1987 covered by Ex.A-4 judgment that
pursuant to so called will of 1974 there was any partition between her and
Muthaiah and Rajamma, the wife, son and daughter of Rajanna-after death of
Rajanna in the year 1983 or during life time of Rajanna before 1983. When such
is the case, the so called mutation in the year 1985 for S.No.9 only based on
Ex.A-1 will for the first time under Ex.A-2 referring to the will that was not
even referred about the will in Ex.A-3 for mutating name of Lasumbai in S.No.28;
shows, it is a manipulated entry after the litigation between the parties
started if any in the year 1985 or the obtaining with antedate, said document
for anticipating litigation or for the case purpose in O.S. No.101 of 1987.
Even a concession was given in the Ex.A-4 judgment of O.S. No.101 of 1987 for
Lasumbai to establish her title if any based on so called alleged family
arrangement, there is no worth evidence on record that could be produced by
Lasumbai as plaintiff in the present suit for declaration of title even from
what is discussed above with reference to Exs.A-2 and A-3 filed by her with
reference to Exs.B-1 to B-9 relied by her step son Muthaiah and step daughter
Rajamma, defendant Nos.1 and 2 of the suit.
13) From this background, it is to be seen that what the plaintiff Lasumbai
claimed of the properties are the self-acquired and absolute properties of
Rajanna proved false, so also the contest thereunder in this regard to the suit
claim, thus it also substantiates the finding of the Court in O.S. No.101 of
1987 covered by Ex.A-4 judgment relied on by her of the properties are proved as
ancestral properties and not at all the self-acquired properties of Rajanna.
14) Now, coming to any further material on the alleged oral family arrangement
pleaded by Lasumbai as plaintiff in the suit in support of her contest in the
written statement with no evidence admittedly in O.S. No.101 of 1987 covered by
Ex.A-4 judgment referred supra, even the same is inconsistent regarding the date
or month or year regarding the alleged family arrangement when that was
effected. Admittedly either in the previous suit O.S. No.101 of 1987 covered by
Ex.A-4 judgment or in her plaint pleadings in the present suit, she did not
mention any date of the alleged oral family arrangement muchless month or even
of Telugu Almanic or fasli. In the earlier suit O.S. No.101 of 1987 in her
written statement what she contended regarding alleged oral family arrangement
was at the cost of repetition what is referred supra that in the life time of
Rajanna he settled his properties viz., lands and houses on Muthaiah and Rajamma
(son and daughter of 1st wife) and Lasumbai (second wife) in the year 1974 in
the following manner.
i) Northern portion land in an extent of Ac.6-16 guntas out of Ac.12-32 guntas
of land in survey No.28 of Dasnapur village and 1/3rd portion towards eastern
side of land of Ac.1-13 guntas in S.No.9 of Mavala village were settled in the
name of the plaintiff.
ii) Southern portion land in an extent of Ac.6-16 guntas out of Ac.12-32 guntas
of land in survey No.28 of Dasnapur village and 1/3rd portion of land of Ac.1-13
guntas in S.No.9 of Mavala village and a residential house bearing Panchayat
No.4-58 of Savargaon village were settled on the 1st defendant.
iii) The land bearing Survey No.1/84 in an extent of Ac.2-34 guntas situated at
Savargaon (Taraf) village, Adilabad Mandal and District and 1/3rd portion of
land of Ac.1-13 guntas in S.No.9 of Mavala village were settled on the 2nd
defendant.
15) It is her specific plea there from the alleged settlement (that too oral)
was only of the year 1974 and by describing the properties of said oral
settlement respectively she further stated that they are in exclusive possession
and enjoyment of respective properties ever since said family arrangement and
late Rajanna also executed a will on 26.07.1974 (marked as Ex.A-1) by way of an
abundant caution bequeathing his properties as mentioned above. Her stress in
written statement was Rajanna by arrangement settled his properties; in
contending those are the self-acquired properties of Rajanna that too alleged
family arrangement just before the will of the same year 1974 and as an abundant
caution only he executed the so called will. It is important here to note what
could be the conduct of Rajanna in his so called unilateral action in creating
any rights in favour of his son, widowed daughter and second wife in
distributing any of his interest in the properties or his any other properties,
it should be as a prudent man since his not self-acquired properties even to his
knowledge for nothing acquired; but for inherited as coparcenery properties and
under Section 6 of Hindu Succession Act to orally divide the half undivided
share of him as the other undivided half share is of his son Muthaiah with any
provision to his widowed daughter of him that arrangement made by him by any
disposal or by any bequeath by any will to take after his life time shall be for
his share and not for the entire property. If at all to non-succeed his son and
having taken from right by birth undivided half of the ancestral properties
along with him to bequeath his undivided half share in the properties to his
second wife and his widowed daughter which was not done. Once, there was he
allegedly chosen to make an oral settlement by alleged family arrangement there
is no need of his making any bequeath for it subsequently by registering the
same but for suffice if at all to prepare a recital in acknowledgement of the
past alleged oral settlement or family arrangement as acknowledgement of past
transaction is not an instrument under the Stamp Act as per settled position of
law for no need of Stamp duty, muchless registration for no rights to create
under the document, but for to preserve as evidence and at best to the revenue
authorities and panchayat authorities with that acknowledgement of a past oral
transaction document copy by enclosing or with any application by signatures of
all of them to mutate respectively mentioning there was so called oral
settlement by oral arrangement. There is something fishy from the above to show
a will is brought into existence with an idea carved out from ingenious
intelligence from a close and overall reading of the facts and circumstances of
the case setting up some right over the properties by some settlement by
Rajanna, taking advantage of the then helpless situation of Rajanna under the
influence of his second wife Lasumbai and admittedly her brother also residing
nearer to the house in the same village even by then instigated if any for the
recourse, without that legal knowledge. It shows the will is brought into
existence with propounder influence by Lasumbai and under the suspicious
circumstances. It is also important to note that, for speaking said alleged
oral family arrangement of 1974 just before or some days or one or two months
before alleged will dated 26.07.1974 there is no other document born by record.
Had it been with an intention even for argument sake for family arrangement
there need not be any pre-existing interest or right to share in the properties
to all of the family members and even those having no right to share or no right
pre-existing can be included to provide some property to avoid any future family
disputes or to solve existing family disputes there must be some record and
atleast there must be immediate mutation in the panchayat and revenue records of
the house property and landed properties to act upon said arrangement. It was
not done admittedly and even from the documents filed and on plaintiff's
described supra more particularly Exs.A-1 to A-3 for the first time with the
signatures of Tahsildar in the year 1985 something brought into existence
referring to so called registered will of the year 1974, there is alleged oral
family arrangement in the year 1974. In this back ground if we appreciate the
factual matrix of the case with other circumstances to say there is no any
genuine family arrangement is crystallizing for the following. In the present
appeal impugned suit claim of O.S. No.2 of 1991 plaint pleadings of Lasumbai
what she pleaded regarding alleged oral settlement or oral family arrangement
that Rajanna in his life time of the lands, house, cattle shed etc., on
plaintiffs and defendants 1 and 2 in the year 1974 in the following manner.
i) Northern portion land in an extent of Ac.6-16 guntas out of Ac.12-32 guntas
of land in survey No.28 of Dasnapur village and 1/3rd portion towards eastern
side of land of Ac.1-13 guntas in S.No.9 of Mavala village were settled in the
name of the plaintiff.
ii) Southern portion land in an extent of Ac.6-16 guntas out of Ac.12-32 guntas
of land in survey No.28 of Dasnapur village and 1/3rd portion of land of Ac.1-13
guntas in S.No.9 of Mavala village and a residential house bearing Panchayat
No.4-58 of Savargaon village were settled on the 1st defendant.
iii) The land bearing Survey No.1/84 in an extent of Ac.2-34 guntas situated at
Savargaon (Taraf) village, Adilabad Mandal and District and 1/3rd portion of
land of Ac.1-13 guntas in S.No.9 of Mavala village were settled on the 2nd
defendant.
16) It is in para-5 and in para-4 she averred that all those are self-acquired
properties of Rajanna (which is proved false). In para-5 further averred that
ever since the date of family settlement plaintiff and defendants 1 and 2 even
in exclusive possession and enjoyment of the respective properties (there is no
proof for the same). It is Muttaiah having undivided half share with Rajanna,
got more properties by partition and not by family arrangement and to wife of
Rajanna there are no special circumstances to give nearly entire half share of
Rajanna over family properties. The other member is widowed daughter,
admittedly staying at brother's house i.e., Muttaiah. It is not even the case
of she asked for any provision. Thus, there are no any circumstances to arrive
any family arrangement. Therefrom, it appears, as Rajanna and his second wife
staying at one house and Muttaiah and his sister Rajamma staying separate to
them, pending future partition, they might have thought of time being convenient
cultivation and enjoyment of income from lands in so taking and cultivating and
any ridges formed thereby, that what Muttaiah even deposed; cannot be said the
same substantiates alleged oral family arrangement. The fact that Muthaiah also
in Ex.A-4 judgment covered by O.S. No.101 of 1987 referred as deposed in his
cross examination that S.No.28 of Dasnapur northern half in his enjoyment and
southern in the enjoyment of Lasumbai with a ridge in between separating
demarcation of respective enjoyment or it was at the instance of Rajanna to
avoid disputes he allowed so to enjoy by Lasumbai muchless out of the extent in
the enjoyment of Lasumbai she sold Ac.2-00 to Sanjeeva Reddy and for which no
relief setting aside alienation sought by Muthaiah muchless to the 3rd defendant
under the alleged agreement by Lasumbai agreed to or executed any sale deed
pursuant to it to 3rd defendant or Muthaiah also sold by converted into plots
but for few almost to third parties out of the extent in his enjoyment does not
mean muchless proof of any oral division or oral family arrangement creating
rights from respective enjoyment when that is not by any oaster or exclusive
enjoyment with animus possessendi but for at best to say the alienees are
entitled to work out the equities to the extent entitled out of the respective
shares on partition if at all to be ordered in this suit if not by filing
separate suit in this regard. Thus, the observation of the trial Court
therefrom for the contention of the plaintiff therefrom in support in the trial
Court's judgment disputing the appeal claim no way sustained. As such any
subsequent alienations out of extents enjoyed also of no evidence to corroborate
alleged family arrangement for no even mutation affected if at all there was
such arrangement to act upon.
17) The theme behind family arrangements is to give finality to family disputes
and differences. As per the Halsbury's laws-a family arrangement is a
transaction between members of same family for the benefit of the family
generally and to preserve the family property, peace and security in the family,
saving of the honour of the family and to avoid family disputes and litigations
by amicable arrangements. Such family arrangements even can be arrived at
orally. Its terms can be even recorded in writing of what has been settled and
such a memorandum is for the purpose of being used in future for evidencing the
past transaction. If the family arrangement is only a mere memorandum of past
oral family arrangement reduced to writing it does not require stamp duty and
registration. If it is a document by which rights are for the first time created
or title for the first time declared by the terms of the document-it requires
Registration. That what the law laid down in the expressions relied upon by the
Respondents to the appeal vide:AIR-1966-SC-323; AIR-1966-SC-1836; AIR-1955-SC-
481; AIR-1976-SC-807; AIR-1971-SC-1337 & 2003(8)SCC-740.
18) The above expressions also disclose that what all the pre-requisites for
family arrangement must be not only resolution of disputes and rival claims but
also the members may be parties to the arrangement and must have some antecedent
title, claim or interest and even a possible claim in the property which is
acknowledged by the parties to the settlement and then even if one of the
parties to the settlement has no title but under the arrangement the other party
relinquishes all its claims or title in favour of such a person and acknowledges
him to be the owner, then the antecedent title must be assumed under the family
arrangement and not to disturb such arrangement. There is nothing to show
Muthaiah consented for such a family arrangement to part with undivided half
share over the properties by hearing any word of elders or his father much less
his widowed sister Rajamma even to give nearly half share of the properties of
Muthaiah to his step mother and no elders even examined and proved for the same
if at all taken place allegedly before so called three elders as per plaintiff.
It is thus, not proved about all the members consented to such an arrangement.
It was not even such a case to allot share to the wife even equally with son and
husband in the coparcenery properties, which is unknown under the Hindu South
India Mithakshara coparcenery to which the parties governed undisputedly. It is
not even her case that it is in recognition of pre-existing right of
maintenance, that arises only when husband and wife live separate if at all and
not while living together even while he was alive which is not the case. As
there must be some meaning to say widowed daughter was given some right in the
property being dependant on the father to maintain from the joint family
properties for no means even under Hindu Adoptions and Maintenance Act, but
there is no meaning to say wife and husband when living together almost a half
share in the properties along with the son given to the wife to belie so called
oral family arrangement that too when there is nothing to say any dispute
relating to the property muchless not the factual matrix of she contributed
anything for purchase of any property from her property or her money earlier
used by the joint family for any particular purpose and to compensate, the
property was going to be given etc. Having regard to the above by mere citing
all the legal position of oral family arrangement can be made and which can be
even in anticipation of a dispute and even without any pre-existing right a
right in the property can be created etc., from said decisions, the plaintiff
cannot contend that there is a family arrangement muchless oral or thereunder,
she was given out of Ac.12-31 guntas, the southern half of Ac.6-16 guntas in
S.No.28 of Dasnapur village apart from other properties almost at par with the
son of Rajanna by name Muthaiah by allotting as if those are separate properties
of Rajanna; despite the fact remains and proved that those are the coparcenery
properties where Rajanna has no absolute right but for undivided half share
along with his son Muthaiah the other coparcener after death of Rajanna's father
Ramanna in 1949-50.
19) Here as discussed supra there are no circumstances shown and proved in
existence to enter such family oral arrangement and the convenient and time
being enjoyment of any of the lands cannot be regarded as proof or corroborative
piece of proof to the alleged oral family arrangement.
20) Coming to the next contention of late Rajanna executed the so called will
dated 24.07.1974 by way of abundant caution concerned, if at all for abundant
caution for oral family arrangement to create document is not by will as if his
property to bequeath, but otherwise as stated supra. Thus, any ridges formed on
the lands and Rajanna was separate in mess and living along with plaintiff till
his death no way suffice to say, there was oral family settlement and in support
of it a registered will deed. There is no mention even in the trial Court to
say from above pleadings in the plaint leave about written statement of the
plaintiff herein as defendant in O.S. No.101 of 1987 that the so called will
executed was confirming the oral family arrangement. It is a clear pleading
that family arrangement is independent the will with bequests made are
independent and however by adding it is as an abundant caution and also by
including some other survey No.6 of Mavala village where Rajanna lost possession
for over 25 years ago. That averment is also not true of Rajanna lost
possession over S.No.6 of Mavala village 25 years ago for the following that
from perusal of Ex.B-2 khasra pahani of the year 1954-55 S.No.6 and 9 of Mavala
village were shown in the name of Mattapalli Ramanna and for the same as well as
S.No.9/A rounding the name of Ramanna, the name of Mattapalli Rajanna noted.
The plaintiff also not produced any evidence to say Rajanna lost possession of
specifically that S.No.6 while holding possession of S.No.9 and 9A of Mavala
village. Even Ex.A-2 filed by her of Mavala village pertains to the year 1983-
84 and not any year prior to 1973-74 after 1954-55 to say in making bequeaths in
the will additionally for S.No.9 that was not covered by oral family arrangement
for the reason of the family lost possession of any of S.No.6. Even Ex.A-2
nowhere refers the S.No.9A, but for S.No.9 only though Ex.B-2 refers S.No.6,
S.No.9 and S.No.9AA. Thereby it is with no credibility of said version by her
in the statement as well as her evidence as P.W-1.
21) From this background now, coming to the so called Ex.A-1 will how far that
is proved concerned it is not only sufficient to discuss Section 68 with its
proviso of the Indian Evidence Act and Section 63 of the Indian Succession Act,
but also what is the basic concept behind the will how the phrase WILL arisen.
The word will arisen from the Latin word Voluntes to mean the expression of
intention of a testator generally in a document. The very testament derived
from the Latin word Testatio Mentis to mean testifies determination of the mind.
The dispositions thereunder to the favour of legatees to take effect after
demise of said testator.
22) Lord Wilmot, C.J. in Doe Long v. Laming (2 Burr. At pp. 11-12) described the
intention of the testator as the "pole star" and is also described as the
"nectar of the instrument".
23) It is meaningless to say in the vain attempt to make believe by the
plaintiff in her pleading as well as evidence in chief of P.W-1 that there was
an oral arrangement by settlement of the properties which are self-acquired of
Rajanna made in 1974 and with no lapse of time to the oral arrangement is an
abundant caution he executed said Ex.A-1 registered will by making bequeaths.
It is because it will not serve as any abundant caution for confirmation of
recital to alleged oral settlement or family arrangement by bequests in will but
for if at all by any family arrangement deed or partition deed if not a simply
reducing to record of the so called past oral settlement/family arrangement with
no need of stamp and registration. Even it is taken note of, it shows the
intention of Rajanna in executing the document referred as will is not to make
any testament, but for if possible only to give life to alleged oral family
arrangement. Thus, the circumstances, under which said Rajanna made the so
called bequeath under Ex.A-1 will doubts any of his intention to execute a will
making bequeaths much less to serve as a last will and testament. It is for the
reason from what all discussed on the scope of will that, had it been as an
abundant caution, he could have executed some other document confirming oral
settlement or oral family arrangement to create or to confirm and not by will
which is a revocable document at any moment. Apart from it, he cannot convey the
entire property in which 1st defendant his son Muthaiah also got undivided half
interest by birth since coparcenery property, to make a bequeath but for if at
all under Section 30 of the Hindu Succession Act for the undivided half share in
the properties had it be the really intended to make a bequeath for his
interest. Further once there was an alleged oral family arrangement with no
claim of right or reserving right or share in him, the question of making any
bequeath for non-est interest for any extent over the property muchless for
entire property does not arise.
24) Therefore, the very circumstance and facts which leads to the alleged
intention of executing a will by making a bequeath by Rajanna are riddled with
suspicion and it shows there is a prepounder influence and umpteen of suspicious
circumstances shrouded around the so called making of bequeaths by executing the
will. Coming to the proof of will and construction of will and the appreciation
of evidence by Court in ascertaining the intention of the testator, the law is
well settled. In this regard the Apex Court held as follows:
"The apex Court settled the principles that are to be taken consideration in
construction and proof of wills right from the cases of (1) Ram Gopal V. Nand
Lal AIR 1951 SC 139 (2) Gnambal Ammal V. T.Raju Ayyar AIR 1951 (SC) 103, (3) Raj
Bajrang Bahadur Singh V. Thakrain Bakhtraj Kuer AIR 1953 SC 7, (4)
H.Venkatachala Iyengar V. B.N.Thimmajamma AIR 1959 SC 443, (5) Rani Purnima Debi
V. Kumar Khagendra Narayan Deb AIR 1962 SC 567 (6) Shasi Kumar Banerjee V.
Subodh Kumar Banerjee AIR 1964 SC 529 (7) Pearey Lal V. Rameswar Das AIR 1963 SC
1703 and (8) T.V.Kour Case of 1964 SC 1323 and (9) AIR 1965 SC not to mention
about other decisions including (10) Veerattalingam case of AIR 1990 2201 and
(11) PPK Gopalan Nambiar case of AIR 1995 SC 1852 that in construing the will,
the Court has to ascertain the intention of the testator not only from the
contents of the document but also from the surrounding circumstances and the
Court also has to put itself into the testators armchair to bear in mind the
other matters, and construe from the surrounding circumstances, the position of
the testator his family relationship, and the dispositions made therein and
preference of some other among several legal heirs and considerations in making
bequeaths in stead of allowing the estate by intestacy to claim by legal heirs
equally.
The above referred in Shashi Kumar Banerjee's case of AIR 1964 SC 529=the
constitutional bench of the Apex Court clearly held at page-3 531 para - 3 that
the mode of proving a will does not oridinarily differ from that of proving any
other document except as to the special requirement of attestation prescribed in
the case of a will by section 63 of the Indian Succession Act which says the
testator shall sign or affix his or her mark to the will or it shall be signed
by some other person in the presence and by his direction and the will shall be
attested by two or more witnesses each of whom has seen the testator signing or
affixing his or her mark to the will or as seen some other person signed the
will in the presence and by the direction of the testator and each of the
witnesses shall sign the will in the presence of the testator and Section 68 of
the Evidence Act mandates in the case of even non-denial of execution,
examination of one attesting witness atleast in proof of the will whether
registered or not. Therefore, the law relating to the manner and onus of proof
and also duty cast upon the Court and on the propounder if any, to dispel the
suspicious circumstances surrounding execution, if any, required as per the
Indian Succession Act and Evidence Act.
The Indian Registration Act Section 18 says that the registration of a will is
optional and not compulsorily but for any probability from registration of a
will. Thus, non-registration of 'will' by itself will not bear suspicious
circumstances and mere registration will not give genuinety. The Apex Court
constitutional Bench in the above referred decision in para-4 P.531 observed
further that, the onus of proving the will is on the propounder by clearing the
cloud and by dispelling the suspicious circumstances. In the absence of
suspicious circumstances surrounding the execution of the will, it has to be
proved to say suffice the testamentary capacity and of the signature of the
testator as required by law to discharge the onus. Where there are suspicious
circumstances, the onus is heavy on the propounder to explain them to the
satisfaction of the Court, before the Court accepts the will as genuine and last
will and testament. Where the opponent alleges undue influence, fraud and
coercion, after initial burden in proof of the above, the onus shifts upon him
to prove the alleged undue influence or fraud or coercion or misrepresentation
or the like. Even whether there are no such pleas, if the circumstances give
raise to doubt, it is for the propounder to satisfy the conscience of the Court.
From the above pronouncements, it is clear that the suspicious circumstances may
be as to genuineness of the signature of the testator or the contention of the
testator's mind or relating to the dispositions made in the will being unnatural
or improbable or unfair in the light of relevant circumstances or there might be
other indications in the will to show that the testator's mind was not free and
it is not a free and voluntary disposition. In such a case, the Court would
naturally expect that all legitimate suspicions should be completely removed by
the persons relying on the document, before the document is accepted as the last
will of the testator. If the propounder himself takes part in the execution of
the will and gets benefit, that is also a suspicious circumstance to be taken
into account and the propounder is than required to remove the doubts by clear,
cogent and satisfactory evidence. If the propounder succeeds in removing the
suspicious circumstances, then only the Court can accept the will as genuine and
duly executed to act upon if it is the last will and testament.
The Apex Court in Uma Devi Nambiar V. T.C.Sidhan case of (2004)2 SCC 321 at para
16 observed that a will is executed to alter the mode of succession and by the
very nature of things, it is to result in either reducing or deprive the share
of natural heirs. If a person intends that his or her property to pass his or
her natural heirs, there is no necessity at all for executing a will. It is for
the propounder of the will or the beneficiaries to it to remove all suspicious
circumstances relating to any doubt, conjecture or mistrust to clear before
accepting the will. The mere fact that, natural heirs have either excluded
totally or lesser share has given to them, that itself is not a suspicious
circumstance, especially in a case where the bequests have been made in favour
of the offsprings. It is the duty of the propounder of the will to remove all
the suspected features but there must be real germane and valid suspicious
features and not fantasy of the doubting mind. Therefore, the mere proof of
dispositions by proving its execution and attestation is not suffice to decide."
25) Thus, it is not even to alter the mode of succession by making any bequeath
entirely to the plaintiff being his second wife in his undivided interest in the
property to give any credence of the version of no cordial relation between
Rajanna and Muthaiah but for between Rajanna and his second wife Lasumbai, the
plaintiff.
26) Further coming to the proof of will, Section 63 of Indian Succession Act
reads:
"63. Execution of unprivileged wills: Every testator, not being a soldier
employed in an expedition or engaged in actual warfare, or an airman so employed
or engaged, or a mariner at sea, shall execute his will according to the
following Rules:-
(a) The Testator shall sign or shall affix his mark to the will, or it shall be
signed by some other person in his presence and his direction.
(b) The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen
the testator sign or affix his mark to the will or has seen some other person
sign the will, in the presence and by the direction fo the testator, or has
received from the testator a personal acknowledgement of his signature or mark,
or of the signature of such other person; and each of the witnesses shall sign
the will in the presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no particular form of
attestation shall be necessary."
Section 68 of the Indian Evidence Act reads:
"68. Proof of execution of Document required by law to be attested: If a
document is required by law to be attested, it shall not be used as evidence
until one attesting witness atleast has been called for the purpose of proving
its execution, if there be an attesting witness alive, and subject to the
process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attetsting witness in proof
of the execution of any document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration Act, 1908 (16 of
1908), unless its execution by the person by whom it purports to have been
executed it specifically denied".
27) At the cost of repetition and in addition to what is discussed supra, from
the combined reading of Section 63 proviso of Indian Succession Act and Section
68 of Indian Evidence Act the execution of the will has to be proved by
examination of atleast one of the testator alive irrespective of denial or non-
denial as it is not at par with other compulsory attestable documents regarding
mode of proof under Section 68 of the Indian Evidence Act by virtue of the
proviso to said section. Here P.W-2 is admittedly not attestor to so called
will to speak several facts regarding alleged execution and attestation. He is
only an identifying witness before the Sub-registrar to speak Muthaiah present
before the Sub-registrar while registering by Registrar, the identifying witness
identified the said person who tendered the document executed for registration
as self-same person to identify. Coming to whether alleged attestors 2 in
number as can be seen from the names of attestors mentioned in Ex.A-1 will what
P.W-1 deposed (that during life time of her husband Rajanna, out of certain
properties owned by him) is in the chief-examination last few lines of her
husband executed a will deed about 18 years ago and it was also registered and
he handed over the registered document to her and her husband bequeathed the
properties under the will in accordance with the settlement arrived earlier and
at the time of execution of the will her husband was hale and healthy and he
knew the signing in Devanagari script Hindi and he affixed the signature to the
will and the will was written by clerk of Advocate Rajeswara Rao, (a muslim) in
Urdu who is no more, Ghulam Mohammed, Bojja Rajeswara Rao, Rajeswara Rao teacher
were present and they attested the will and Ghulam Mohammed and B.Rajeswara Rao
are no more. In fact the teacher Rajeswara Rao referred by her was P.W-2
subsequently examined by her he was not attestor of the will as can be seen. A
perusal of above chief examination version of P.W-1 speaks as if she was present
and witnessed the so called execution in saying her husband signed on the will
and it was written by clerk of advocate Rajeswara Rao a muslim in Urdu and
B.Rajeswara Rao and Ghulam Mohammed attested the will. It is not simply filing
the will and speaking from contents for saying among the testators referred and
the scribe who are alive or not. It is not even deposed by her though required
as to what made him to execute the will at that point of time for her saying as
an abundant caution as to how she came to know the same to speak so called
intention of attestor of execution as an abundant caution for nothing to say is
stated to her either before execution or after execution or while handing over
so called registered will or later. She further deposed that said Ghulam
Mohammed was a friend of her husband and B.Rajeswara Rao also known to her
husband for his having lands in their village and teacher Rajeswara Rao (P.W-2)
also having lands in their village and known to her husband and after execution
of the will her husband handed over the will to her and also told their son and
daughter and other villagers about the execution. It is even her version in the
evidence for the first time apart from no plea of so called handed over to her
in the presence of son and daughter also by making them known. She further
deposed that he executed the will because he had an apprehension that she would
be in trouble if he passed away without leaving any document. It is meaningless
of alleged apprehension is the cause and intention of execution of the will
instead of other document had it been an act of ordinary prudent person to give
credence on the conduct. She deposed that after death of her husband she
obtained mutation by applying to Tahsildar and after visiting, the Tahsildar in
the village and enquired and recorded the properties in her name, apart from her
son and daughter and agreed with the family settlement. Ex.A-2 and A-3 she
relied regarding the so called mutation for S.No.28 and S.No.9 referred supra
nowhere refers any family arrangement for so believing. It is not even her case
that at that time, she produced the will or given to Tahsildar any copy of it or
shown, for saying her son or daughter present or were enquired or there is no
objection or did not dispute about alleged will and its existence. From this
evidence coming to her cross-examination regarding nature of properties are that
of self-acquired of her husband what she deposed that her husband Rajanna
purchased the properties in S.No.28 from a muslim 60 years back with his own
income and of Mavala village, properties from a Kapu person even prior to her
marriage is with no basis and not supported by any document or revenue record
entry and proved false from what is discussed above more particularly of Exs.B-1
to B-9 entries for these properties which show that those are the ancestral
properties and not self-acquired of Rajanna. She deposed regarding the will
Ex.A-1 in her cross-examination that her husband executed registered will at
Sub-registrar's office and she was not present at the time of execution. When
such is the case how she could say positively the place of execution at Sub-
Registrar office. In the further cross-examination it is deposed that the so
called elders referred in her chief examination as so called elders of oral
family settlement by name Paderi Shivanna, Neerati Ganganna, Kummari Chinnanna
were even alive by the time of execution of Ex.A-1 and she cannot say whether in
the will it is mentioned or not that was executed and property was given for her
expenses. She denied the suggestion that her husband did not execute will and
it has brought into existence to deprive the defendants 1 and 2 by fabricating
the will to the benefit of her brother who is admittedly residing in the same
village. She also denied the suggestion that the suit properties does not
belong to her husband and those belongs her father-in-law Ramanna. She denied
the suggestion that no family arrangement or partition spoken by her taken place
and it is a false case set up by her.
28) From this, coming to even the evidence of P.W-2 T.Rajeswara Rao, a retired
teacher of Adilabad, he deposed that he got ancestral properties at Savargaon
and plaintiff's husband Rajanna and his son and daughter Muthaiah and Rajamma
are known to him. He deposed that he knows Rajanna's lands near his lands under
his cultivation at Savargaon, he also deposed that Rajanna lands at Dasnapur
were divided as per the elders' advise and gave lands to the plaintiff, the 1st
defendant and the 2nd defendant by oral arrangement and he told that he execute
will deed in favour of the family members by came to his house at an evening and
asked him to come to the registrar's office on next day. In his saying so
called panchayat and alleged oral arrangement of Rajanna giving lands to his
wife, son and daughter does not even his case he was present as one of the
elders of the panchayat and that is not even case of the plaintiff in her
evidence as P.W-1 muchless in her pleading and even in the cross-examination
dated 21.10.1994 but for stated the three persons as elders of so called oral
arrangement of properties, she did not speak about P.W-2 Rajeshwara Rao, retired
teacher, as one of the elders. Through his evidence in this regard not even his
case of he came to know as if he was present is nothing but exaggeration and to
help the plaintiff for one reason or other. It is from the fundamental
principle that trial is a voyage in which truth is in quest and it is the duty
of the Court to appreciate the evidence of a witness not only from what he
deposed but also the attending facts and circumstances and human probabilities
and conduct and by separating grain from chaff when so called oral arrangement
deposed by him not even stated date or month or year and his presence if any is
not believable for what is discussed and from what he deposed in the cross
examination of he was not present at the alleged elders' panchayat for
settlement of properties, even coming to his attending at request of Rajanna at
the previous day to the Sub-registrar's office, he was admittedly working as
teacher by then. It is not even a case that it is a holiday to school. It is
not even his case when not holiday to Sub-Registrar's office, he applied leave
muchless permission to leave the school to go to Sub-registrar's office. His
evidence that he came to know of the so called panchayat and oral settlement of
properties by Rajanna 5 years prior to the date of execution of the said will by
Rajanna. If that is the case, the alleged oral family arrangement must be prior
to or in the year 1969 as will was in the year 1974 and as per the plaintiff it
was only in the year 1974 alleged family settlement taken place. So, the
inconsistency between the two mutually destructive versions not only belies P.Ws
2's evidence is a witness chosen to speak even false things or unknown things to
help the plaintiff apart from the same even doubts the plaintiff's version of so
called oral settlement in the year 1974 just before the will, if P.W-2's
evidence in this regard given any little credence of 5 years prior to the will
so called family arrangement made. There is nothing even deposed about any
disputes between the family members for so called family arrangement to settle
the properties from such disputes relating to properties. Admittedly no even
any so called elder examined to speak so called oral settlement and as to what
made Rajanna to make the oral settlement of the properties as family arrangement
in anticipation or in settlement of any disputes. It is important to note
further that even Rajanna called three elders whom he got confidence for alleged
oral family settlement of the properties known to them, none of them were called
to attest the will or to identify him before Sub-Registrar. The P.W-2 was not
called as elder by Rajanna muchless present if plaintiff's evidence believed of
just before the so called will in the same year the so called oral settlement
taken place; Then, is it be believed that Rajanna went to P.W-2 on the previous
day of execution of the will at the evening and asked to come to Sub-Registrar's
Office on the next day. That too when both are not even villagers with
acquaintance but for both got lands in same village from what P.Ws 1 and 2
deposed. There is nothing for P.W-2 to say what more acquaintance he got with
Rajanna for Rajanna calling him by ignoring any of the villagers even to the
Sub-Registrar's Office. P.W-2 in the cross-examination deposed that Rajanna did
not purchase any stamp for the will execution even before scribing of the will
he was there and Rajeswara Rao, Ghulam Mohammed so called attestors were already
there by the time he went there and though the will was drafted between 9.00 A.M
to 12.00 noon and Rajanna narrated for what was written by scribe Amarulla Khan
a draft and he was unable to say how much time taken for his preparing draft and
fair of said will. He categorically deposed that Rajanna did not say the scribe
about any earlier settlement of properties and even Ex.A-1 will nowhere
mentioned of the will was read over and explained to the attestor and witnesses.
He categorically deposed that Rajanna does not know writing and reading in Urdu,
but for understanding. It is important to note his version in the cross-
examination further that by 1974 he was school teacher with timings 10.00 A.M to
4.00 P.M and lunch hour from 1.00 p.m. to 2.00 p.m and on the alleged date
24.07.1974 he attended the school and he was head master of the school at that
time. It is important to note what he deposed was the draft was prepared
between 11.00 A.M to 12.00 noon. He further deposed that school starts at 10.00
A.M and when he was the head master and attended the school is it believable
that even before preparing the draft he having attended the school and attended
to the Sub-Registrar's Office at the place where the alleged will scribed before
its commencement within no lapse of time between 10.00 to 11.00 A.M. What he
deposed is he came to D.T.O Office on official work for passing some bills on
that day to speak it was working day and not even holiday to the school. He
deposed further that he had no lands in Dasnapur and he even does not know how
many bulls Rajanna have and how much land at Savargaon village and he also does
not know how much cattle Rajanna was having and he has not seen who were
cultivating the lands at Savargaon village. If he really attended the school on
that day which commences after 10.00 A.M and therefrom when went to official
work to the D.T.O office for passing of some bulls, is it believable that after
said completion of official work at D.T.O office he went to Sub-Registrar Office
even it is within the premises or abutting premises before so called starting of
preparation of draft of Ex.A-1 will before 11.00 A.M. In all it shows his
presence and witnessing of the will with all details as if and in further chief
examination after he went there, the document writer Amarullah Khan prepared the
draft to the narration of Rajanna and later the fair and read over and Rajanna
agreed the contents as true of the document in Urdu and thereafter Rajanna put
his signature in Hindu and even he was present there Rajanna asked him only to
identify before Sub-Registrar's Office and not even to attest or asked Rajeswara
Rao and Ghulam Mohammed to attest etc., shows he chosen to depose to any extent
without any knowledge and truth and his evidence regarding so called witnessing
of the so called execution of Rajanna and even not chosen to attest and Rajanna
asked only to identify before Sub-Registrar's Office rather than to attest all
belies his evidence regarding so called execution of will by Rajanna and it is
nothing but an interested testimony for no credibility to be attached to his
evidence regarding execution of will or on other aspects regarding so called
oral arrangement made by Rajanna 5 years prior to so called will or even giving
of details that plaintiff was given northern half of Dasnapur 1/3rd of land at
Mavala, door No.3-4 of Kottam, to the 2nd defendant was given of land Savargaon
village, 1/3rd in Mavala village. Even he had no lands at Mavala and Dasnapur
and even not visited to speak of those details when not even one of the elders
to so called panchayat of settlement by oral family arrangement. Thus, P.W-2's
evidence has no credence on any aspect to prove the so called claim of the
plaintiff, which the trial Court failed to note.
29) Once that P.W-2 cannot be believed from no credibility on what he deposed,
there is no evidence at all but for self serving testimony of plaintiff as P.W-1
to speak which is also riddled with inconsistencies as discussed supra with no
credibility to rely for the so called family arrangement or so called Ex.A-1
document styled as will. When such is the case, the so called execution of will
as if those are the separate properties of Rajanna by Rajanna itself belies the
very so called intention of Rajanna to make the bequeaths that too when he is
conscious that he is survived by son and the properties are the coparcenery
properties in which his son got right by birth having they are inherited from
father of Rajanna, the ancestral properties, the question of but for making his
undivided share bequeathing entire properties as if his own, had he really
executed the will, does not arise; that also a strong circumstance which not
only belies the will and the alleged bequest therein and also so called family
arrangement besides the will is not proved as required under Section 63 of the
Indian Succession Act and Section 68 of the Indian Evidence Act of due execution
and attestation but also by examination of at least one of the attester or
person acquainted with the signature and hand writing of such of the attestors
if died by proof of so called death by any examination of his legal heirs like
son or other family member of so called attestor with any death certificate
etc., and in the absence of which mere say of they are no more is not enough
that too by non-examination of so called scribe even on the so called manner of
execution and bringing into existence. That itself shows the propounder
influence of plaintiff Lasumbai at the instance of her brother if any and it is
riddled with suspicious circumstance shouldered around, to clear the cloud
though the burden lies in due execution, attestation and proof and intention of
the attestor by clearing the suspicious circumstances, totally failed to
discharge the burden by plaintiff and the so called oral arrangement also belies
from what is discussed above. Once the Ex.A-1 document styled as will not proved
as required under Section 63 Indian Succession Act and Section 68 of the Indian
Evidence Act as discussed supra, it is not admissible as will. Even to coming
to the contents from the contention of the appellant Muthaiah that the
requirements of construing the document as will or lacking for no reserving
right to revoke or cancel and to say as last will and testament when it is not a
will and to any dispossessions there under besides not duly stamped and not
registered for any transfer for not an acknowledgement of past so called oral
family arrangement, it cannot be looked into. In this regard the translated
copy of the will deed Ex.A-1 from the (original in Urdu), at page-4 speaks from
the last Para while referring Muthaiah son, Rajamma daughter and Lasumbai wife
and he become old aged with no hope on life and the three persons are the only
heirs, it further reads: "therefore I want to make suitable arrangement of the
property during my life; hence, I ---------- bequeathed in favour of above
mentioned beneficiaries description of which is shown in the particulars of
property. Till my life I will be the owner of the properties referred above
and after my demise, according to the particulars of the properties referred
above the beneficiaries would be the owners and possessors and shall be entitled
for patta in which nobody shall have any kind of right or claim. If anything
raised, that would be null by virtue of this document and during my life time I
shall have right to cancel and modify this will deed. Hence, I have executed
this will deed with my sound consciousness, own free will and consent, so that
it may be used at the time of need." From this even to say the contents speak
as will from saying he is the absolute owner and in his life time he got
absolute rights with possession and nobody got no right but for after his life
time and what it further speaks from the initial words within inverted commas
supra of I want make suitable arrangement of the property during my life time
and there is no any reference of alleged family arrangement which is suffice to
say even for arguments sake for not proved as will the contents to take for any
collateral purpose, there is no any reference about alleged earlier family
arrangement if at all he made and had it been proved it only speaks thereby to
substantiate the conclusion arrived supra of any time being internal arrangement
for convenient enjoyment of any extents that what D.W-1 deposed and any
subsequent alienations while under enjoyment of respective enjoyments taken
conveniently does not suffice to say the alleged family arrangement orally taken
place. Had it been true besides he had no right to make dispossessions under
the document Ex.A-1, could have referred atleast the same even to take said
statement as relevant of deceased Rajanna under Section 32(2) or (6) read with
Section 11 of the Indian Evidence Act. In fact this document also as discussed
supra not proved as even executed by late Rajanna for what all discussed of P.W-
1 was not stated as present at the time of alleged execution and the conclusion
supra of she is behind with propounder influence in its bringing into existence
thereby the contents even not proved to look into even to said purpose from what
all first defendant as D.W-1 Muthaiah deposed the signatures on the document as
that of his father Rajanna and not the contents it will not flow to say from
admission of signature contents flow much less execution. Thereby the finding
of the trial Court in this regard without discussing all these material aspects
is unsustainable and requires reversal.
30) Once there is no family arrangement and once there is no will proved by law
besides no right to land to execute as his own for not even to undivided share
as these are the coparcenery ancestral properties, in which Rajanna and his son
Muthaiah each got undivided half and after death of Rajanna his half share under
Section 6 of the Hindu Succession Act by notional partition goes to the Class-I
legal heirs that is the wife-plaintiff, son Muthaiah and widowed daughter
Rajamma each entitled to 1/3rd undivided share out of half of the properties as
the remaining other half of the coparcenery properties belonged to the 1st
defendant i.e., son of Rajanna by birth.
No doubt the appeal is continuation of
suit and pending the same, the widowed daughter of Rajanna by name Rajamma being
the step daughter of the plaintiff died intestate and it is not the property
self acquired of said Rajamma, 2nd defendant; but for succeeded and inherited
from her father Rajanna out of coparcenery interest of Rajanna and under Section
15(2) of the Hindu Succession Act, from her death issueless and her husband pre-
deceased her and the property inherited from father, it devolved upon the other
heirs of father under Section 15(1) clause (d) i.e., Rajanna's wife and son
i.e., Lasumbai and Muthaiah equally to say in the properties out of Rajanna's
half share (since the widowed daughter of Rajanna died intestate and issueless
and her husband predeceased) entitled to equally by his second wife the
plaintiff-Lasumbai and Muthaiah-1st defendant to say 1st defendant got 3/4th
share and plaintiff got only 1/4th share.
Thus, though it is a suit for
declaration based on alleged oral family arrangement since not proved and so
called will also since not proved, alternatively declaration of the undivided
1/4th share out of the entire properties of Rajanna in favour of the plaintiff
can be granted without need of driving for another suit as per the settled
expressions of law including by the Apex Court (within power of the Court under
Order LXI Rule 33 C.P.C) vide decisions 2004(6) ALD 514 and 2011(5) ALT 790 and
the Apex Court's expression including of 1994 referred therein apart from such
power of the appellate Court for rendering complete justice between the parties
to the lis under Order LXI Rule 33 and 24 C.P.C. Further, it is also from the
settled law that from Ac.2-00 of the land in S.No.28 already alienated by
Lasumbai in favour of brother of 3rd defendant by name Sanjeeva Reddy as not
disputed in the Ex.A-4 judgment filed and for any part of the property alienated
in favour of 3rd defendant to the suit by Lasumbai out of S.No.28, under law and
equity to the extent of 1/4th share out of the total properties of the
coparcenery consisting of Rajanna and Muthaiah in the lands covered by S.No.28
total extent of Ac.12-31 guntas of Dasnapur village, S.No.6, 9 and 9A of Mavala
village and S.No.1 and 1E of Savargaon village by allotting the 1/4th share
therein; under law of equity in working out the rights between the parties to
the extent possible to said alienees can be granted. Accordingly, a preliminary
decree in favour of the plaintiff for 1/4th share out of the properties by
working out the equities to the extent possible to be ordered to consider while
passing final decree by the trial Court. Accordingly point No.1 is answered.
31) In the result, the appeal is allowed in part to the extent, while setting
aside the trial Court's decree and judgment in granting declaration of title and
injunction for entire plaint schedule properties of the present suit in favour
of the plaintiff (appeal-1st respondent Lasumbai);
however, by holding that as
those are part of the joint family properties of 1st defendant who got 3/4th
share and the plaintiff got 1/4th share from death of Rajanna and from death of
Rajamma respectively,
the plaintiff's entitlement is only to that extent so to
declare her title with no relief of injunction since undivided, thus by granting
preliminary decree for partition for said shares of plaintiff and 1st defendant
respectively, so as to enable them to apply for final decree for division of the
entire properties in which the plaint schedule are part and in so dividing
plaintiff's 1/4th share to consider to the extent possible in the plaint
schedule respective items by equity for allotment in S.No.28/1 of Dasnapur
village Southern side 1/4th out of the total extent of Ac.12-31 guntas, firstly
upon the vendee for Ac.2-00 therein and for any other extent to claim by the 3rd
defendant subject to enforcement of the so called contract for sale between
plaintiff and said 3rd defendant; so also subject to proof of alienations in
other extents to claim such equities by such vendees out of the 1/4th share of
the plaintiff while dividing so to allot. There is no order as to costs in the
appeal.
_________________________
Dr.B.SIVA SANKARA RAO, J
Date: 23-01-2014

A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

Search This Blog

Section 15(2) of the Hindu Succession Act

2014 ( January part ) judis.nic.in/judis_andhra/filename=10782

Comments

Post a Comment