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1982 DIGILAW 59 (SC)

Katamanenal Rattamma v. Katamnani Kollamma

1982-02-02

AMARENDRA NATH SEN, V.D.TULZAPURKAR

body1982
JUDGMENT : V.D. Tulzapurkar, J. - The question raised in this appeal mainly relates to the genuineness of a will dated 9th May, 1951 said to have been executed by one Nageswara Rao. 2. It appears that Nageswara Rao was a much married man; appellant-plaintiff was his first wife from whom he had a daughter while respondent no. 1 (defendant no. 1) was his third wife having no issue from him. He died on 7th June, 1951 at his residence in Raynapadu village. According to the appellant-plaintiff he died intestate and, therefore, she as one of the two co-widows became entitled to possession and enjoyment of one half of the properties left by him. She, therefore, filed suit no. 218 of 1951 claiming partition and separate possession of her half share in the suit properties. The suit was resisted by the first defendant (third wife) as well as by one Rama Swami (second defendant) and the nephew of the deceased by setting up the will said to have been executed by Nageswara Rao on 9th May, 1951. It appears that under the will Nageswara Rao gave two acres of land to his nephew Rama Swami and rest of the properties to his third wife. The appellant-plaintiff disputed the genuineness as well as the due execution of the will. The Trial Court held that the will had been duly executed and was the last will and the testament of the deceased testator and dismissed the appellant-plaintiff's suit on 3rd September, 1960. 1 he appellant-plaintiff carried the matter in appeal to the High Court being First Appeal No. 102 of 1961, which was heard by a learned Single Judge, who took the view that the propounder of the will had not satisfactorily explained certain suspicious circumstances touching the execution of the will and that, therefore, the will was not properly proved to the satisfaction of the Court's conscience. In that view of the matter the learned Single Judge decreed the suit. Both the defendants preferred a Letters Patent Appeal and a Division Bench, which heard the same, reversed the view taken by the learned Single Judge and affirmed the view taken by the trial Court, restoring the dismissal of the suit. It is this decision of the Division Bench that has been challenged by the appellant-plaintiff before us in the instant appeal. 3. It is this decision of the Division Bench that has been challenged by the appellant-plaintiff before us in the instant appeal. 3. On a consideration of the provisions contained in the disputed will dated 9th May, 1951 and after hearing counsel on either side we are satisfied that the Division Bench was right in coming to the conclusion that the will was a genuine document and its due execution has been satisfactorily proved by the propounders of the will by properly explaining the so-called suspicious circumstances attending the document and we think that there is little scope for interference Judgment dated February 2, 1982 in Civil Appeal No. 1739 of 1969 with the findings recorded by the Division Bench on the so-called suspicious circumstances. 4. It may be stated at the outset that there was no dispute before us that the deceased had put his signature on the document, being the will dated 9th May, 1951 and that his signature thereon was attested by three attesting witnesses and the only question that was raised before us was that whether the suspicious circumstances surrounding the will could be said to have been satisfactorily explained by the propounder of the will or not and in that behalf a couple of circumstances were strongly pressed into service before us by counsel for the appellant. It appears that after the death of Nageswara Rao suit, being Suit No. 465 of 1951 was filed by three plaintiffs, Chukaiya, a sub-lessee under Nageswara Rao and the two widows (being appellant-plaintiff and the first defendant) against temple authorities for certain reliefs and in paragraph 8 of the plaint there was a recital to the effect that Nageswara Rao had died intestate and counsel contended that such a recital which was subscribed to by the first defendant (the third wife) would be fatal to her case that the deceased had executed a will in her favour and this circumstance clearly suggested that no testamentary document whatsoever was executed by the deceased. This circumstance was explained by the first defendant (third wife) in her evidence by stating that the appellant-plaintiff and her relations had after the death of Nageswara Rao obtained her signature on some blank papers on the representation that some affidavits were required to be filed and trusting them she had affixed her signature on those blank papers but she did not know what use was made of those blank papers after she had signed them, the suggestion being that the same were used for preparing the plaint for the suit. Now ordinarily such an explanation may not have been accepted by any Court but the explanation received corroboration from the first defendant's immediate conduct after coming to know of the fraud that had been played upon her. The Division bench has pointed out that on coming to know of this the first defendant (third wife) caused notices to be issued to Chukaiya and appellant-plaintiff's relations through her advocate stating that her signatures were obtained for filing some affidavits and trusting them she had affixed her signatures on blank papers. What is more in Suit No. 465 of 1951 itself the first defendant filed an affidavit complaining about the fraud played on her and requesting the Court to delete her name from the plaint whereupon the suit was promptly withdrawn by her co-plaintiffs. The prompt withdrawal of the suit is a tell-tale circumstance which lends support to the explanation given by the first defendant regarding her signature on the plaint containing the fatal recital. The Division Bench has accepted the explanation and we see no reason why we should take a different view in the matter. 5. The other circumstance on which counsel for the appellant placed reliance was that the will was an unnatural disposition because the appellant-plaintiff (first wife) as well as her daughter, who was married and had children had been completely excluded from any inheritance. Counsel contended that whereas the first defendant (third wife) had no child, the appellant-plaintiff had a daughter from the deceased and the daughter had children and it was difficult to accept that the deceased would leave his first wife, daughter and the grand children without any property. Counsel contended that whereas the first defendant (third wife) had no child, the appellant-plaintiff had a daughter from the deceased and the daughter had children and it was difficult to accept that the deceased would leave his first wife, daughter and the grand children without any property. If regard be had to the recitals that are to be found in the will, it will appear clear that the deceased had made provision for the appellant-plaintiff (his first wife) even before he contracted his second marriage. It has been stated by the deceased in the will that when he was preparing himself for the second marriage, as his first wife was not staying with him and had gone away, the appellant-plaintiff (first wife) had brought some mediators and had demanded that he should give her some share in the property and that he could take second wife only after this aspect was finally settled; the will goes on to recite that thereupon as per the terms of the compromise effected by the mediators lie agreed to give to Rattamma (appellant-plaintiff) sori dry land to the extent of acres 2.02 cents. bearing re-survey D. No. 50/1A and sori wet land to the extent of acres 2.5 cents, bearing re-survey D. No. 258/1 both situated in village Raynapadu and these pieces of land were given to her absolutely with complete powers of disposition by way of gift, sale, exchange, mortgage, etc. and that neither Rattamma (appellant-plaintiff) nor the heirs of her family should ever have any right or claim whatsoever on his remaining properties. It was suggested by counsel for the appellant before us that part of these lands were Stridhan properties of the appellant-plaintiff but this part of her case was not substantiated by the evidence on record. It may also be stated that the appellant-plaintiff herself admitted in her deposition that at the time of the marriage of her daughter the deceased had given one acre of land to the son-in-law. In view of these aspects which appear clear on record it is difficult to say that the will is an unnatural document. 6. It is not necessary to refer to the other so-called suspicious circumstances as, in our view, these have been sufficiently dealt with by the Division Bench and have been properly explained. In the result the appeal fails and is dismissed with no order as to costs.