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1964 Supreme(AP) 138
Andhra Pradesh High Court
Judges : A.GOPAL RAO
Peddi Sivaiah - Appellant
Versus
Tekchand - Respondent
Decided On : 07-24-64
The burden of proving the genuineness of a will lies on the propounder, and in cases of suspicious circumstances, the propounder must remove such suspicions and prove that the testator knew and approved the contents of the will.
Headnote:
WILL - PROOF - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - LEGAL REPRESENTATIVES - INCONSISTENT PLEAS - COMPROMISE - HINDU SUCCESSION ACT, SECTION 14 - POSSESSION.
Fact of the Case:
Plaintiffs claimed the suit property as heirs of Nagiah, who died leaving a will in their favor. The first defendant, Nagiah's widow, contested the will and claimed the property as his legally wedded wife. The second defendant, who had entered into an agreement to purchase the property from Nagiah, obtained a compromise decree against the first defendant, admitting the execution of the agreement and receipt of consideration.
Finding of the Court:
The lower appellate court held that the will was not genuine and that the compromise decree was not vitiated by fraud. The court found that the first defendant was the legally wedded wife of Nagiah and that the first plaintiff was not his illatom son-in-law.
Issues: 1. Whether the plaintiffs had discharged their burden of proving the genuineness of the will. 2. Whether the compromise decree was vitiated by fraud. 3. Whether the first defendant was the legally wedded wife of Nagiah. 4. Whether the first plaintiff was Nagiah's illatom son-in-law.
Ratio Decidendi: 1. The burden of proving the genuineness of a will lies on the propounder. In cases where there are suspicious circumstances, the propounder must remove such suspicions and prove that the testator knew and approved the contents of the will. 2. A compromise decree is not vitiated by fraud merely because the legal representative of the deceased takes a stand inconsistent with the deceased's written statement. 3. Under Section 14 of the Hindu Succession Act, a female Hindu who is in possession of property at the commencement of the Act gets absolute ownership rights, regardless of whether her possession was actual or constructive.
Final Decision: The second appeal was dismissed with costs. The petitions to amend the plaint were rejected.
( 1 ) THIS second appeal is filed by the plaintiffs whose suit has been dismissed by the Second Additional Chief Judge, City Civil Court, Hyderabad through his judgment dated 30/11/1962.
( 2 ) THE necessary facts in order to appreciate the contentions raised before me may be briefly stated.
( 3 ) PLAINTIFF No. 1 claimed himself to be the illatom-son-in-law of one Nagiah who died leaving the suit property. Plaintiff No. 2 is his daughter married to the 1st plaintiff; and plaintiff No. 3 is the son of the first two plaintiffs. It was alleged inter alia in the plaint that Nagiah was the owner of the property. He died on 5-11-1951 leaving the plaintiffs as his heirs. The deceased before he died made a will under which he gave his entire movable and immovable properties to the plaintiffs. It was denied in the plaint that Ethirajamma 1st defendant was the legally wedded wife of Nagiah. It was also alleged that she was a concubine kept by Nagiah but. she was leading an unchaste life. Under the will the plaintiffs claimed the property.
( 4 ) IT was stated that the second defendant had instituted a suit for specific performance of an agreement to sell alleged to have been entered into by Nagiah, In that suit Nagiah had pleaded that there was no agreement executed by him and that it was a forgery. The trial Court after recording the evidence had dismissed the second defendants suit holding that the agreement was a forgery. The second defendant therefore, preferred an appeal in the High Court. During the pendency of the appeal, Nagiah died, and there was dispute as to who should be brought on record as the L. Rs of Nagiah. Both the first defendant as well as the plaintiffs applied. Ultimately however the High Court Drought the first defendant on record as the L. R. of Nagiah and rejected the application filed by the plaintiffs. After Ethirajamma was brought on record as the L. R. of the deceased Nagiah she seems to have entered into a compromise with Tekchand defendant No. 2 whereby she agreed that her late husband had received Rs. 15,000 towards part payment of the sale agreement and that one had no objection if the sale deed is executed in pursuance of the said agreement. On the basis of that compromise the High Court decreed the second defendants suit for specific performance. The plaintiffs in this case now alleged that that decree based on compromise is not binding on the plaintiffs as that is vitiated by fraud.
( 5 ) ETHIRAJAMMA remained ex parte. It is the second defendant who raised various pleas. He alleged that the will was a forged one and that Nagiah has not left any such will; nor the plaintiffs get the property under any such will. It was also stated that Ethirajamma was the legally wedded wife of Nagiah; that plaintiff No. 1 is not the illatom son-in-law of Nagiah although it was admitted that the second plaintiff is the daughter of Nagiah married to the first plaintiff; third plaintiff being their son. It was denied that the compromise was brought about by any fraud practised on the Court.
( 6 ) UPON these pleadings the trial Court framed several issues and after recording the evidence of the parties decreed the plaintiffs suit. It was held by the trial Court that Nagiah left the will in question bequeathing the suit property to the plaintiffs. It was, however, held that Fthirajamma is the legally wedded wife of Nagiah and that the first plaintiff is not the illatom son-in-law of Nagiah. It was also found by the trial Court that the decree obtained by the second defendant against the 1st defendant in his suit is vitiated by fraud.
( 7 ) AGGRIEVED by that Judgment the second defendant carried the matter in appeal before the 2nd Additional Chief Judge, City Civil Court, Hyderabad, His appeal was allowed. The learned 2nd Additional Chief Judge reversing the Judgment of the trial Court held that the will seems to have been brought up by the plaintiffs and is not a genuine one. It was also found that the c
