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2006 DIGILAW 1355 (AP)

RUNKANA RAMAKRISHNA RAO v. RUNKANA VENKATARATNAM

2006-11-02

C.Y.SOMAYAJULU

body2006
( 1 ) APPELLANT is the first defendant in a suit for recovery of money filed by the first respondent against him and the second respondent. ( 2 ) THE case, in brief, of the first respondent is that she is the widow of dillirao, who died intestate and issueless in 1972, and that the appellant and the second respondent are brothers of her deceased husband Dillirao. Appellant and the second respondent have four more brothers including Dillirao and three sisters and were possessed of some joint family properties. The Government acquired the land in S. No. 683/5 of Balaga Village belonging to the joint family and the entire compensation of Rs. 4,28,973-40ps therefor was received by the second respondent with consent of all sharer awardees. As she did not receive any notice in the land acquisition proceedings, she was not aware of the said proceedings and the payment of compensation therein to the second respondent and came to know about the said proceedings and the second respondent receiving the amount of compensation on behalf of all the sharers, only in August 1985 and so she got issued a registered notice dated 20-8-1985 to the second respondent calling upon him to pay 10/63rd share of compensation to her. Second respondent sent a reply alleging that no compensation was received by him towards the share of her husband Dillirao and the person who received the share of her husband only has to pay that amount to her. Thereupon, she got issued a notice dated 7-11-1985 to the appellant, as she came to know that the second respondent paid her husband's share of the amount to the appellant on the basis of a Will said to have been executed by her husband in his favour, for which the appellant sent a reply dated 18-11-1985 with untenable allegations. The allegation therein that she was divorced by Dillirao in 1962 is not true. There was no partition between her father-in-law and his sons. Hence, she is entitled to a decree for recovery of her share. e. Rs. 58,091-01ps. with subsequent interest from the appellant and the second respondent. The allegation therein that she was divorced by Dillirao in 1962 is not true. There was no partition between her father-in-law and his sons. Hence, she is entitled to a decree for recovery of her share. e. Rs. 58,091-01ps. with subsequent interest from the appellant and the second respondent. ( 3 ) APPELLANT filed his written statement admitting his relationship between him and the respondents and contending that as there were disputes between the first respondent and her husband Dillirao, dillirao divorced her prior to 1962 and thereafter she was living at her parents place, which is at a distance of about 20 Kms from Srikakulam, and that Dillirao was living alone, and was taking shelter in his (appellant's) house and that there was an oral partition in about 1970 among all the brothers including Dillirao, and that dillirao in order to discharge the debts contracted to by him, and as he (appellant) was looking after his welfare, Dillirao through the Will dated 10-8-1972 bequeathed all his properties to him and so first respondent is not entitled to seek recovery of any amount from him. ( 4 ) SECOND respondent filed a memo that inasmuch as the first respondent is not claiming any relief against him, he is not filing any written statement. ( 5 ) ON the basis of the above pleadings, the trial Court framed four issues and one additional issue for trial. In support of her case, first respondent examined herself as P. W. 1 and her brother-in-law as p. W. 2 and marked Exs. A-1 to A-4. In support of his case, appellant examined himself as D. W. 1, and the scribe and attestor of the Will as D. Ws. 2 and 3 and marked Exs. B-1 to B-7. ( 6 ) THE point for consideration is whether Ex. B-5 Will dated 10-8-1972 is true and valid ? ( 7 ) THE contention of the learned counsel for the appellant is that since ex. B-5 is a registered Will and since the appellant examined the scribe and attestor to the Will and since their evidence clearly establishes due execution of the Will, the trial Court was in error in disbelieving the said Will. He placed reliance on m. Ratna v. Kottiboyina Navaneetam, air 1994 AP 96 and R. Kameswara Rao v. B. Suryaprakasarao, AIR 1962 AP 178 , in support of his contention. He placed reliance on m. Ratna v. Kottiboyina Navaneetam, air 1994 AP 96 and R. Kameswara Rao v. B. Suryaprakasarao, AIR 1962 AP 178 , in support of his contention. ( 8 ) THE contention of the learned counsel for the first respondent is that since Ex. B-5 reads as if Dillirao has no wife when in fact first respondent is his wife, the truth and genuineness of Ex. B-5 is doubtful and as the trial Court gave cogent reasons for its conclusion that Ex. B-5 is not true, there are no grounds to interfere with the said finding. ( 9 ) IT is no doubt true that there is no reliable evidence on record to show that the first respondent was divorced by her husband Dillirao, who is the brother of appellant and second respondent. So, it has to be taken that the first respondent was the wife of Dillimo by the time of his death, and so, she would be the heir to the estate of Dillirao had he died intestate, as per the provisions of the Hindu Succession act, 1956. Since the contention of the appellant is that Dillirao executed Ex. B-5 will in a sound disposing state of mind, the burden to establish that Ex. B-5 is true and valid is on him. To establish that Dillirao executed Ex. B-5 in a sound disposing state of mind, appellant examined D. W. 2, the scribe, and D. W. 3, one of the attestors to the Will. ( 10 ) P. W. 1, the first respondent, spoke about her case and denied the case of the appellant. It is her specific case that there is no partition between her husband and his brothers at any time. The evidence of P. W. 2, the brother-in-law of P. W. 1, is that he divided from his father and brothers during the lifetime of his father, and was occupying a separate room and that dillirao was occupying the last room in the same house, and that Dillirao, who was working as a Maistry in Electricity department was suspended thrice from service on account of his instability and intoxication, and was never in his proper senses and that there was no divorce between the first respondent and Dillirao, who died due to Tuberculosis. During cross- examination, he stated that his mother used to look after Dillirao and though the first respondent was indifferent towards her husband, she also used to look after him, and denied the suggestion that the first respondent left her husband Dillirao long time back in view of the differences between them, and admitted that as he is not on visiting terms with the appellant, he cannot say whether the relations between the appellant and the second respondent are good or not, and denied the suggestion that Dillirao was not in the habit of drinking, and was sick only for one month prior to his death, and that he is giving false evidence because Dillirao did not give any share to him. ( 11 ) THE evidence of appellant as D. W. 1 is that Dillirao severed his relationship with the first respondent during 1961 and thereafter first respondent went away to her native place Adapaka and that Dillirao was in service till 1964-1965 and thereafter used to depend upon him and contracted debts and that there was an oral partition between him and his brothers in 1970 and that Dillirao executed a Will (Ex. B-5) in his favour in a sound disposing state of mind and got it registered and that he was not present at the time of execution of ex. B-5 and that Matcha Jagannadham, his elder brother-in-law, who is no more, is one of the attestors to Ex. B-5 and that the second respondent also is one of the attestors thereto and as the terms between him and the second respondent got strained, the second respondent got suit filed against him. During cross-examination, he stated that there is no documentary evidence to show that the marriage between the first respondent and Dillirao was dissolved, but as Dillirao abandoned the first respondent, he thought that there was a dissolution of marriage between them. He also denied the suggestion that he obtained Ex. B-5 from Dillirao after putting him under intoxication. ( 12 ) THE suggestion put to the appellant that he obtained Ex. B-5 after putting dillirao to intoxication shows that execution of Ex. B-5 by Dillirao is admitted and that the contention of the first respondent is that dillirao was in an intoxicated state when he executed Ex. B-5. ( 13 ) THE evidence of D. W. 2, the scribe of Ex. B-5 after putting dillirao to intoxication shows that execution of Ex. B-5 by Dillirao is admitted and that the contention of the first respondent is that dillirao was in an intoxicated state when he executed Ex. B-5. ( 13 ) THE evidence of D. W. 2, the scribe of Ex. B-5, is that he, after scribing Ex. B-5, read it over to the executant and the executant after understanding the recitals, affixed his signature to Ex. B-5 in the presence of the attestors and that the attestors witnessed the testator affixing his signature to Ex. B-5 and that the testator saw the attestors affixing their signatures to Ex. B-5, and that the testator, at that time, was in a sound disposing state of mind and was perfect except the general weakness in the physical condition, and that the appellant was not present at the time of execution of Ex. B-5. During cross- examination, he stated that the testator did not tell his wife's name and also did not disclose whether he is married or not and as Someswara Rao an Advocate sent word to him for scribing a Will, he went to the room in occupation of the testator and by that time, the testator, the Advocate- sorneswararao, the second respondent and two others were present and that he did not prepare any draft and that he read over the contents of Ex. B-5 to the testator and that Advocate-Someswararao secured the paper and that no documents were given to him and that he noted down the particulars given by the testator on a slip and gave said slip to the testator on that day itself and that he had three years experience as a document writer by the time of Ex. B-5 and that he does not know if the Will was registered or not and that he did not go to the Sub-Registrar's office. He denied the suggestion that the appellant got Ex. B-5 scribed in the absence of others and that Dillirao did not instruct him for scribing Ex. B-5. ( 14 ) THE evidence of D. W. 3 is that after the contents of Ex. B-5 were read over to the testator, the testator affixed his signature thereto and that he saw the testator affixing signature to Ex. B-5 and the testator saw his attesting Ex. B-5. ( 14 ) THE evidence of D. W. 3 is that after the contents of Ex. B-5 were read over to the testator, the testator affixed his signature thereto and that he saw the testator affixing signature to Ex. B-5 and the testator saw his attesting Ex. B-5, and that the testator was in a sound and disposing state of mind at the time of execution of ex. B-5. During cross-examination, he stated that the testator used to work in A. P. S. E. B. as Line Man and was married, but does not know whether if his wife was alive or not by the date of Ex. B-5, and that on the basis of the written material furnished by Dillirao, the scribe drafted Ex. B-5, and that he does not know whether Dillirao was addicted to alcohol, and that the writing of Ex. B-5 did not commence by the time he went and denied suggestion that he is giving false evidence. ( 15 ) EX. B-5 which was registered at the house of the testator shows that the second respondent not only attested it, but also figured as an identifying witness before the Sub-Registrar. Another attestor and identifying witness to Ex. B-5 is Someswararao. M. Jagannadham one of the attestors to ex. B-5 is said to be the brother-in-law (sister's husband) of the testator. The signatures of the testator appearing in Ex. B-5 do not appear to have been made by a person under intoxication. In Daulat Ram v. Sodha, AIR 2005 SC 233 = 2005 AILD 79 (SC), the apex Court held (in Para 10) that the propounder has to show that the will was signed by the testator and had put his signature thereto of his own free-will and that at that relevant time he was in a sound disposing state of mind and had signed it in the presence of two witnesses who attested it in his presence and if those elements are established he discharges the onus that rests on him and the burden to prove that the Will was faked or was obtained by coercion, undue influence, fraud etc. , would be on the person who alleges it to be so. As stated earlier the suggestion put to D. W. I during cross-examination shows that execution of Ex. , would be on the person who alleges it to be so. As stated earlier the suggestion put to D. W. I during cross-examination shows that execution of Ex. B-5 by Dillirao is admitted but it is contended that Dillirao was in an intoxicated state of mind at the time of execution. The evidence of D. Ws. 2 and 3 shows that execution of Ex. B-5 by dillirao in a sound disposing state of mind. So the burden to establish that Dillirao was in an intoxicated state at the time of execution of Ex. B-5 is on the first respondent. The testator, who got the Will registered on the next day of its execution on 11-8-1972, did not revoke Ex. B-5 during his lifetime. The attestors to Ex. B-5 are the brother, brother-in-law and friends of the testator. So it cannot be said that Ex. B-5 was obtained when Dillirao was not in a sound disposing state of mind or when he was under the influence of alcohol. The trial court in fact did not disbelieve Ex. B-5 on the ground that the testator was not in a sound disposing state of mind or when he was under the influence of alcohol but disbelieved Ex. B-5 only on the ground that dillirao who was ailing with Tuberculosis had the habit of drinking and so it has suspicion about the state of mind of the testator at the time of execution of Ex. B-5, failing to keep in view that it was registered on the date subsequent to its execution, but not on the same day. If the testator was not in a sound state of mind at the time of execution, he would not have made an application to the Sub-Registrar to come to his house to register the document at his house. The Sub-Registrar, in the normal course would register the document only after satisfying that the testator had in fact executed the document presented for registration. So I am unable to agree with the finding of the trial Court that Ex. B-5 is not true and hold that Ex. B-5 is true and genuine. The point is answered accordingly. ( 16 ) SINCE Dillirao bequeathed all his movable and immovable properties to the appellant under Ex. B-5 first respondent, who was disinherited under Ex. So I am unable to agree with the finding of the trial Court that Ex. B-5 is not true and hold that Ex. B-5 is true and genuine. The point is answered accordingly. ( 16 ) SINCE Dillirao bequeathed all his movable and immovable properties to the appellant under Ex. B-5 first respondent, who was disinherited under Ex. B-5, is not entitled to seek recovery of the amount paid to the appellant as compensation for the land acquired. ( 17 ) IN view of the above finding, the decree and the judgment of the trial Court are not sustainable and are liable to be and hence are set aside. ( 18 ) IN the result, the appeal is allowed. The judgment and the decree of the trial court dated 30/7/1990 are set aside and o. S. No. 43 of 1986 on the file of the Court of the Principal Subordinate Judge, srikakulam, is dismissed. Parties are directed to bear their own costs throughout. .