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2004 DIGILAW 300 (AP)

Mahenderkar Chandrasekhar v. Mahenderkar Nagamani Bai

2004-03-11

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE plaintiffs in O. S. No. 9 of 1991 on the file of the Senior Civil Judge, suryapet are the appellants in this second appeal. They have filed this suit for declaration and permanent injunction in respect of the suit schedule property on the basis of a Will dated 06-09-1987 marked as Ex. A2, said to have been executed by one Amarnath. The suit was filed against the sole defendant, the first respondent herein, who is the mother of Amarnath and grand mother of the appellants. ( 2 ) THE case of the appellants was that late Amarnath is one of their paternal uncles and the suit schedule property was gifted to him by his paternal grand father. It was pleaded that late Amarnath was suffering from ill-health and they looked after him. It was contended that out of love and affection towards the appellants, Amarnath executed the Will in question. ( 3 ) THE first respondent resisted the claim of the plaintiffs-appellants. She pleaded that her son late Amarnath was suffering from mental disorder and taking advantage of the same, the appellants have fabricated the Will in question. In view of the rival contentions, the trial Court framed eight issues. On behalf of the appellants, P. Ws. 1 to 7 were examined and documents Exs. A1 to A36 were marked. On behalf of the first respondent, D. Ws. 1 to 3 were examined and Ex. B1 and B2 were marked. In addition to that, documents Exs. X1 to X9 were marked in the trial Court. ( 4 ) ON appreciation of oral and documentary evidence before it, the trial Court dismissed the suit through its Judgment dated 19-11-1998. It recorded a specific finding that late Amarnath was suffering from mental disorder and as such he was not in a position to execute the Will. Aggrieved by the Judgment and decree of the trial Court, the appellants preferred A. S. No. 1 of 1999 on the file of the Principal District Judge, Nalgonda. The appeal was also dismissed through Judgment dated 01-04-2002. Hence, this second appeal. Aggrieved by the Judgment and decree of the trial Court, the appellants preferred A. S. No. 1 of 1999 on the file of the Principal District Judge, Nalgonda. The appeal was also dismissed through Judgment dated 01-04-2002. Hence, this second appeal. ( 5 ) LEARNED Counsel for the appellants, Sri E. V. S. S. Acharyulu, submits that the findings of the Courts below that late Amarnath was suffering from mental disorder and thereby, could not have been in a capacity to execute the Will cannot be sustained on the face of the evidence on record. According to him, the appellants have placed cogent evidence to establish that late Amarnath was hale and healthy when he executed the Will. ( 6 ) SRI Posunooru Venugopala Rao, learned Counsel for the contesting respondents, on the other hand, submits that the trial Court framed a specific issue touching on the mental condition of the executant of the Will and recorded a finding that he was suffering from mental disorder and thereby the very basis for the Will, ceased to exist. ( 7 ) THE claim of the appellants is based upon a Will said to have been executed by late Amarnath, one of the sons of the first respondent. Therefore, it was for the appellants to establish and prove the Will. ( 8 ) UNLIKE other documents, the proof of Will stands on a different footing. In addition to proving the execution by examining the attestors, the propounder of the Will has to lead relevant evidence to explain the surrounding suspicious circumstances. The leading decision on this aspect is the one rendered by the supreme Court in H. VENKATACHALA IYENGAR VS. B. N. THIMMAJAMMA. ( 9 ) THE first respondent, who is none other than the mother of the executor, specifically pleaded that the executant of the Will was mentally ill as on the date of execution of the alleged Will. Late Amarnath is said to have executed the Will when he was hardly about 34 years of age. This itself was a suspicious circumstance. In addition to that, his mother pleaded several facts touching on the mental condition. It was in this context that the trial Court had framed a specific issue viz. Late Amarnath is said to have executed the Will when he was hardly about 34 years of age. This itself was a suspicious circumstance. In addition to that, his mother pleaded several facts touching on the mental condition. It was in this context that the trial Court had framed a specific issue viz. , issue No. 2 as follows:"whether Amarnath is a man of unsound mind and was under protection of his natural mother, the defendant?" ( 10 ) IT should be said to the credit of the trial Court that it has undertaken extensive discussion with reference to the parameters prescribed by the Supreme court in various decisions rendered by it on the subject. The first respondent as D. W. 1 specifically pleaded that her son was suffering from mental disorder even from child-hood. She has spoken to the fact that the boy was taken to mental hospital at Erragadda for treatment and since the conditions at the hospital were not congenial, she did not continue him there. The records of the hospital were summoned to the Court and marked through D. W. 2, a Doctor of that hospital. Through him it was elicited that even at the age of 23 years, the executant was suffering from severe mental disorder. During cross-examination of D. W. 2, it was elicited that the disease of the executant could have been cured, had the treatment been started earlier. This indirectly shows that the condition of the executant of the Will has crossed the stage of recovery. In addition to this oral evidence, there was documentary evidence before the trial Court in the form of various affidavits that were filed into the municipality by the family members of the appellants and the respondents. In these affidavits, the names of all the co-parceners including that of Amarnath were mentioned. Against Amarnath, it was noted that since he is a man of unsound mind, he is being represented by his mother. In some of those affidavits, the said endorsement was struck of, but in others, such as Ex. B1, the endorsement remained intact. These affidavits were filed in the month of November 1987, whereas the Will is said to have executed in the month of September 1987. In some of those affidavits, the said endorsement was struck of, but in others, such as Ex. B1, the endorsement remained intact. These affidavits were filed in the month of November 1987, whereas the Will is said to have executed in the month of September 1987. In view of these facts, it cannot be said that the finding recorded by the trial court that the executant of the Will, by name, Amarnath suffered from mental ill-health on the date when he is said to have executed the Will cannot be interfered with. The lower Appellate Court has undertaken discussion on this aspect and no exception can be taken to it. At any rate, the mother cannot be expected to treat her own child as mentally retarded. Though the first respondent was subjected to extensive cross-examination, nothing could be elicited from her to discredit her version. The learned counsel for the appellants is not able to point out any question of law that would arise for consideration in the second appeal. ( 11 ) ACCORDINGLY, the second appeal is dismissed. No costs.