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2010 Supreme(AP) 914
THE HONBLE SRI JUSTICE B.CHANDRA KUMAR
Banda Sreeramamurthy
Versus
Uppaluri Lalithamba(died) Mandapaka Bhimeswara Rao and others.
Appeal Suit No.1032 of 2004
Decided on : 24-09-2010
Counsel for the petitioner: Sri A.Ramalingeshwara Rao
Counsel for the Respondents: Sri T.S.Anand Sri Y.Srinivasa Murthy
Headnote:a) EVIDENCE ACT, 1872, Sections 67, 68 and 69 – Dismissal of the suit filed for possession filed by the adopted son against the beneficiary of the will executed by his mother after 11 years of coming into know of the existence of will and the demise of both the attesters – Attester’s signature proved as per Section 69 – Strained relations between the plaintiff and his adopted mother and his sheer neglect to take care of her necessities at the her old age and when she hospitalized established – Will is registered which clearly establishes the intention of the testatrix who wanted to bestow the property bequeathed to her by her husband – Held the dismissal of the suit cannot be faulted with as there is no provision of law persons adopting a son depriving the right of bequeathing their properties and the plaintiff having failed to establish the charge of fraud in disinheriting him proved. (Para 17 and 20)
b) EVIDENCE ACT, 1872, Sections 67, 68 and 69 :- Surrounding circumstances under which the testatrix had executed the will is clearly explained from the facts of the case which are very clear and self evident from the deposition of the plaintiff himself. (Para 21)
c) EVIDENCE ACT, 1872, Section 68 :- It is settled law that surrounding circumstances has to be taken into account while deciding whether the will propounded ix executed by the testatrix.
d) EVIDENCE ACT, 1872, Section 68 :- Plaintiff was aware of the existence of will in favour of the defendants from the reply notice served on him in reply to the legal notice issued to him within three months of the death of his mother. After 11 years thereof by which all the attestors had expired and also the advocate who was instructed by the testatrix, plaintiff chose to file the present suit for recovery of possession. Proverb "Delay defeats the justice" applicable to the case - Evidence relating to identification of signatures of attestor in Ex.B-7 and its original with that of attestor on Ex. B-1 by comparison - Nothing to disbelieve the version of D.Ws.2 and 3. (Paras 23 to 26)
e) EVIDENCE ACT, 1872, Section 69 :- Though the original burden to proof regarding the execution of a will rest on the person propounding it, once the D.W.no:1 who was the scribe of the will and D.W.No: 2 and 3 with regard to attestation of the will had deposed it the burden shifted to the plaintiff who challenged it.
d) EVIDENCE ACT, 1872, Sections 69 and 101 :- Where the plaintiff who raised doubt regarding the mental condition of the testatrix to execute the will alleging that she unconscious in the relevant period failed to produce any evidence to substantiate his allegation, he fails to prove his allegations. (Paras 31 and 32)
f) EVIDENCE ACT, 1872, Sections 68 and 69 – Allegation of the plaintiff that the presence of the beneficiary in the hospital where the testatrix would raise suspicions that she was influenced by her is unacceptable because in the circumstances of the case where the plaintiff who is the adopted son of the testatrix had almost abandoned it is but natural that the presence of the sister and her son who were looking after her cannot be a ground for doubting the intention of the testatrix as no other convincing evidence is produced to show that they are of dominating nature. (Para 33)
g) EVIDENCE ACT, 1872, Section 68 :- Averments of the plaintiff like the failure of the defendant to file a suit to establish their title as suggested by the rent controller in R.C.C. or failure to produce the doctors who treated the testatrix or not mentioning of the treatment in the hospital by the testatrix in the will does not in any way support the case of the plaintiff throwing doubt regarding the execution of the will. (Paras 34 to 37)
h) Non-examination of the first defendant or the alleged variation of the thumb impressions of the testatrix in the impugned will and the earlier will not material enough to interfere with the well reasoned judgment of the lower court especially in view of the failure of the plaintiff to take any steps to refer the variation alleged to an expert. (Paras 38 to 41)
This Appeal is directed against the judgment and decree dated 24.10.2003 passed in O.S.No.205 of 1998 (old O.S.No.638 of 1990) on the file of III Additional District Judge at Vijayawada, whereby and whereunder the suit filed by the appellant was dismissed.
2. The parties will be referred as they are arrayed in the original suit for the sake of convenience.
3. The brief facts of the case are as follows:-
The plaintiff is the adopted son of late Banda Satyanarayana & Sharadamba. He is also sister's son of late Sharadamba. The first defendant - Lalithamba (died) is the sister of Sharadamba. After the death of the 1st defendant, her legal representatives were brought on record. Late Banda Satyanarayana, during his life time, bequeathed the suit schedule property to his wife Sharadamba under a registered Will in the year 1950. Banda Satyanarayana died on 16.1.1951 and the Will executed in favour of his wife Sharadamba came in to effect. It is the case of the plaintiff that he stayed with his adoptive mother for some time and later shifted to a separate residence. Late Sharadamba continued to live in one portion of the suit schedule house and she was letting out the remaining portions to defendants 2 to 7 and collecting rents from them. The first defendant is widowed sister of late Sharadamba. She had lost her only son and was residing with Sharadamba. Her daughter - 8th defendant, who got estranged with her husband, began to stay with her mother - the 1st defendant and her grand mother Sharadamba in the suit schedule house.
4. Late Sharadamba was admitted in St.Ann's Hospital, Bandar Road, Vijayawada on 20.12.1978 and she died in the hospital on 1.1.1979. According to the plaintiff, he performed the obsequies of late Sharadamba as she is his adoptive mother. It is also his case that he was inherited the suit schedule properties being the sole legal heir and when he tried to take the suit schedule property, the first defendant and the tenants did not cooperate with him. Thereupon, he got issued registered notice dated 13.2.1979 to the first defendant and the tenants but the first defendant gave a reply setting up a false and forged Will dated 25.12.1978. Meanwhile, their relatives intervened and prevailing on the plaintiff to wait for some time hoping that better counsel might prevail with the first defendant. Subsequently, the first defendant filed R.C.C.Nos.23 to 26 of 1980 on the file of the Rent Controller, Vijayawada against the fourth defendant who contested the claim of the first defendant claiming the property and one of the tenant J.V.Chalapathi Rao pleaded that he was paying rents to the plaintiff, and, subsequently, those RCCs were dismissed directing the first defendant to establish her title to the property against the plaintiff. The first defendant has not initiated any legal proceedings. The plaintiff made efforts to get the record of St.Ann's Hospital, Vijayawada, but in vain. Basing on the above averments, the plaintiff filed a suit for recovery of possession for mesne profits and costs.
5. The first defendant filed written statement and denied the allegations made by the plaintiff. It is averred that the very fact of plaintiff instituting the suit after a long delay of about 11 years speaks the conduct of the plaintiff and that the suit has been filed to grab the property. The first defendant further admitted in the written statement about the execution of the registered Will by late Banda Satyanarayana in favour of his wife late Sardamba bequeathing the suit schedule property. The specific case of the first defendant is that as there were disputes between the plaintiff and late Sharadamba, the plaintiff started living separately and was ill treating Sharadamba and in the above circumstances, late Sharadamba executed a registered Will bequeathing all her properties in favour of the son of the first defendant U.V.Raghava Rao, but, subsequently, the said U.V.Raghava Rao died and that the first defendant was
