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2008 DIGILAW 788 (AP)

Kovilapu Suryanarayana v. Jogi Thavitamma

2008-09-17

VILAS V.AFZULPURKAR

body2008
Judgment : This appeal is preferred by the sole defendant against the preliminary decree passed by the learned Additional Subordinate Judge, Srikakulam in O.S.No.74 of 1988, dated 06-12-1990. 1. 2. In this appeal, though the respondents-plaintiffs were served, there is no appearance on their behalf. 2. 3. I have heard the learned counsel for the appellant-defendant who has taken me through the records of the case. I have considered the pleadings, oral and documentary evidence as well as findings of the trial Court. 3. 4. Thecase of the respondents-plaintiffs, in brief, is as follows; The plaintiffs are all daughters of one K. Chandrayya. The sole defendant is their brother. It is alleged in the plaint that the plaintiffs, defendant and one late Eswararao are children of K. Chandrayya. The plaintiffs alleged that late Chandrayya died 15 years back. His wife also died in 11 years back and their brother Eswararao also died unmarried about six years back. It is admitted that all the plaintiffs were married during the lifetime of Chandrayya. It is alleged that the joint family properties of Chandrayya were being managed by Eswararao and the defendant, and after the death of Eswararao, defendant alone is managing. Plaint 'E' Schedule properties are various items of joint family property, which comprises of various lands, tiled and thatched houses with vacant site. Movable properties are described in plaint 'F' schedule properties. On the allegation that all the suit schedule properties are joint family properties and that the plaintiffs are not given any share in spite of the agreement in the mediation between plaintiffs and the defendant, they wanted to separate from the joint family; that the plaintiffs claim that they have given a legal notice, Ex.A-1, dated 19-10-1988 which was replied to by the defendant under Ex.A-2, reply, dated 26-10-1988; that the plaintiffs there upon have filed the present suit seeking partition of plaint 'A' to 'F' schedule properties into two equal shares and for allotment of one such share to the them. 1. 5. The defendant filed the written statement alleging that the plaintiffs are not members of the joint family as they were married during the life time of Chandrayya, who has provided each of the plaintiffs with gold, jewellery and other property at the time of their respective marriages. 1. 5. The defendant filed the written statement alleging that the plaintiffs are not members of the joint family as they were married during the life time of Chandrayya, who has provided each of the plaintiffs with gold, jewellery and other property at the time of their respective marriages. It is further alleged that late Chandrayya died in August, 1970 and had already executed Ex.B-4, Will, dated 05-04-1970. It is further alleged that the defendant and Eswararao were enjoying the property. Late Chandrayya's undivided 1/3rd interest was also being enjoyed by the defendant and Eswararao till 1982, when Eswararao died. Eswararao also executed Ex.B-3, Will, dated 27-07-1980 bequeathing the joint family properties in favour of the defendant. The defendant thus is in exclusive enjoyment of the joint family properties from 1982. It is alleged that in the interregnum, mother of the parties i.e. wife of late Chandrayya, also died in 1974. It is further alleged that the Will executed by Eswarrao is attested by the husband of the 2nd plaintiff (who was examined as P.W.5). The defendant also alleged that he purchased various extents of lands as described in para-3 of the written statement, which are his exclusive self-acquired properties. The defendant also alleged that the plaint schedule is not correct and that the plaintiffs have no locus standi to maintain the suit and they have no interest on the family as they are not members of the joint family, and hence they have no right to seek partition. 2. 6. On the above pleadings, the following issues were settled by the trial Court: 1. 1. Whether the plaintiffs are entitled for partition of plaint 'A' to 'F' schedule properties and for allotment of half share to them? 2. 2. Whether the plaintiffs are entitled for profits from the date of filing of the suit till the date of delivery? 3. 3. Whether the will dated 5-04-1970 alleged to have been executed by the father of plaintiff and defendant is true and valid? 4. 4. Whether the Will dated 27-07-1980 alleged to have been executed by late Eswararao, the brother of plaintiffs and defendant, is true and valid? 5. 5. Whether the defendant made purchases of some of the plaint schedule properties and whether they are his exclusive properties? 6. 6. To what relief? 7. During the trial, the plaintiffs got examined P.Ws.1 to 5 and marked Exs.A-1 to A-3. 5. 5. Whether the defendant made purchases of some of the plaint schedule properties and whether they are his exclusive properties? 6. 6. To what relief? 7. During the trial, the plaintiffs got examined P.Ws.1 to 5 and marked Exs.A-1 to A-3. Their evidence has already been referred to above i.e. Exs.A-1 and A-2, registered notice and reply notice, prior to the suit, respectively. Ex.A-3, a stamp-paper worth Rs.0.50 paise, dated 14-07-1987, is alleged to have been purchased by the plaintiffs expecting to engross result of the mediation. The defendant got examined D.Ws.1 to 3 and marked Exs.B-1 to B-4. Exs.B-1 and B-2 are the same as Exs.A-1 and A-2, respectively. Ex.B-3 is the will deed, dated 27-07-1980 of Eswararao and Ex.B-4 is the will deed, dated 05-04-1970 of Chandrayya. The 3rd plaintiff was examined as P.W.1. P.Ws. 2 to 4 claimed to be mediators. P.W.4 is the brother of P.W.5 and P.W.5 is the husband of the 2nd plaintiff who is said to be attestor of Ex.B-3, Will. Similarly D.W.1 is the defendant and D.W.2 is the attestor of Chandrayya's Will and D.W.3 who speaks of Ex.B-3, will, executed by Eswararao and is an attestor of Ex.B-3, Will. 7. 8. On consideration of the said evidence, oral and documentary, the trial Court believed the plaintiffs' version that there were mediations on the basis of evidence of P.Ws.2 to 4 and the trial Court also found that Exs.B-3 and B-4, wills, are not proved by accepting the evidence of P.W.5, attestor. On expressing a doubt regarding execution of the Will of Chandrayya, i.e. Ex.B-4, as well as the will of Eswararao, i.e. Ex.B-3, the evidence of D.W.3 was rejected and in view of the same, the trial Court decreed the suit for partition. 8. 9. The learned counsel for the appellant-defendant contended that the findings of the trial Court in accepting the evidence of P.Ws.2 to 4 were wholly unjustified inasmuch as their cross-examination would clearly show that the witnesses are not speaking of truth and in fact, they are unable to substantiate their contention. It is further contended that P.W.5, G.Subbarao, is the husband of 2nd plaintiff, who has intentionally disowned his signature on Ex.B-3, Will and his own brother P.W.4 also speaks about the mediation as one of the mediators. It is further contended that P.W.5, G.Subbarao, is the husband of 2nd plaintiff, who has intentionally disowned his signature on Ex.B-3, Will and his own brother P.W.4 also speaks about the mediation as one of the mediators. The statements of P.Ws.4 and 5 are therefore interested testimonies and the trial Court committed an error in believing the same. The evidence of D.Ws.2 and 3, who are attestors of Ex.B-4, Will, and Ex.B-3, Will, respectively, was erroneously disbelieved by picking up minor discrepancies. It is further contended that the trial Court has proceeded to compare the signatures on Exs.B-3 and B-4, Wills, of the attestors i.e. P.W.5 and D.W.3 and has erroneously come to conclude that the signatures do not tally. The learned counsel further contended that the plaintiffs-respondents, who were admittedly married during the life time of Chandrayya, have resorted to file the suit after more than 20 years of Chandrayya's death, merely at the instigation of P.W.5, the husband of plaintiff No.2, and the fact that the plaintiffs have not moved their little finger after the death of Chandrayya in August, 1970, after the death of their mother in 1974, and after the death of Eswararao in 1982, and have come up with the present plaint, only at the end of 1988, clearly shows that the plaintiffs are merely trying to harass the defendant after a long period of over 20 years knowing that they have no right to the property. Therefore, he prays that the appeal may be allowed. 10. Now the questions that fall for consideration are that: 1. 1. Whether the plaintiffs have any locus standi to file the present suit after a long gap of 20 years and when they are ousted from the alleged joint family property? 2. 2. Whether plaintiffs have proved mediation as alleged? 3. 3. Whether the finding of the trial Court in rejecting wills Exs.B-3 and B-4 is justified? 4. 4. Whether the suit schedules properties, comprises of alleged joint family properties as well as subsequently purchased self acquired property of the defendant? 11. Sofar as the 1st question is concerned, there is no specific plea of the defendant/appellant with regard to the ouster of plaintiffs and consequently, the trial Court also did not frame any specific issue on that aspect. There are, however, averments in the written statement suggesting the aforesaid question. 11. Sofar as the 1st question is concerned, there is no specific plea of the defendant/appellant with regard to the ouster of plaintiffs and consequently, the trial Court also did not frame any specific issue on that aspect. There are, however, averments in the written statement suggesting the aforesaid question. Paras 4 and 5 of the written statement are as follows: "4. Thus the plaintiffs have no locus standi to maintain the suit as they are not members of the joint family by virtue of their marriages and have no interest in the joint family or its properties of Chandrayya and his two sons and they are not joint family members. 1. 4. It is true that plaintiffs have issued notice and a reply is sent by the defendant. But it is not true to say that they raised any dispute. 2. 5. The plaintiffs have no cause of action and have no right what so ever to ask for any partition of joint family properties now held by this defendant nor any of the properties purchased by the defendant." There are two para 4s, one at page 2 and another at page 3 of the written statement. 12. The evidence of P.W.1, who is the 3rd plaintiff in the suit, which is as follows: "We have got 100 tulas of silver, 26 tulas of gold. Apart from that we have got the movable properties worth of one and half lakhs. After the death of our parents, we requested the defendant to give our share but he has not given anything.................." In the cross-examination of P.W.1, he stated "Our marriages were performed without giving any lanchanams or expenditure during the lifetime of our parents......" "My younger brother Eswararao was died 7 years back. I cannot give date, month and year of his death. Right from the death of my father till the death of my mother, we have been asking defendants for partition of the properties. I have not given any notice to my mother or to the defendant and Eswararao for partition of the properties. I have not given any notice to the defendant after the death of my mother. We have not paid the land revenue for the suit schedule property after the death of my father and mother and brother Eswrararao. I have not given any notice to my mother or to the defendant and Eswararao for partition of the properties. I have not given any notice to the defendant after the death of my mother. We have not paid the land revenue for the suit schedule property after the death of my father and mother and brother Eswrararao. It is not true to say that entire suit schedule property is in the enjoyment of two brothers and after the death of Eswararao, the defendant is enjoying the property exclusively. It is not true to say that the defendant never stated to us that he will give properties in the suit schedule property and he has been in possession of the property adversely since 20 years." 1. 13. Except the said oral evidence of P.W.1, no other witnesses on behalf of the plaintiffs speaks of any demands made by the other plaintiffs nor there is any other evidence on the part of the plaintiffs. The other witnesses of the plaintiffs, P.Ws.2 to 5, speak of the mediation between the plaintiffs and the defendant, which is much subsequent to the death of parents of the parties as well as the death of Eswararao as mentioned above. Since there was no specific pleading for framing the issue with regard to the ouster, the trial Court has not considered this aspect. However, the said question assumes importance inasmuch as all the plaintiffs were married more than two decades back and they are, on their own pleadings and evidence, excluded from the enjoyment of the property. Since the respondents-plaintiffs have necessarily to make out a case for their entitlement to the partition sought for by them, the said issue, therefore, requires consideration by the trial Court. In the light of all the attending circumstances, and in the absence of any finding of the trial Court on the said aspect and in the light of the conclusions reached by the trial Court, any finding on those aspects, by this Court, at this stage, may not be justified. 2. 14. Point No.2:- So far as the contention of the respondents-plaintiffs with regard to the alleged mediation etc. is concerned, the trial Court has believed the evidence of P.Ws.2 to 5 who speak of mediation. 2. 14. Point No.2:- So far as the contention of the respondents-plaintiffs with regard to the alleged mediation etc. is concerned, the trial Court has believed the evidence of P.Ws.2 to 5 who speak of mediation. So far as P.W.3 is concerned, he appears to be interested witness as the 2nd plaintiff's daughter is the daughter-in-law of P.W.2 and he admits of existing disputes arose within two or three months of his sons marriage and he himself has sold some properties to defendant and says that during the alleged mediations on two occasions, no document or agreement is taken. P.W.3 further claims that he mediated the dispute between the plaintiffs and the defendant and claims that there was a settlement, and it was to be reduced on stamp papers and for that transaction, stamp papers were purchased. In the cross-examination, P.W.3 deposed as follows: "I cannot give the date of our settlement. We have not taken any agreement from the defendant........" "We have not decided the extent of land or its value, to be given to the plaintiffs......." "2nd plaintiff is the wife of my younger brother. She is the 1st wife............" "It is true that in connection with the marriage, there were cases between our families since 20 years......" "It is not true to say that we have not settled any matter and that the defendant did not come to our house for the settlement and I have set up plaintiffs to take advantage of enmity." 15. P.W.4 speaks of the mediation, in which he participated about six years back. In the cross-examination, he says as follows: "I cannot give the date and month of mediation. Subbarao is the husband of 2nd plaintiff. She is the 2nd wife of Subbarao. He got the 1st wife. Subbarao is my brother's son. It is not true to say that I supported in the elopement of Subbarao with 2nd plaintiff and due to which there are disputes with me and the family of the defendant......." "It is not true to say that I am not the mediator for the dispute and the defendant did not agree to give any property of the plaintiff and I am speaking false to support the plaintiffs and Subbarao, husband of the 2nd plaintiff. He denied the will of Eswararao, Ex.B-and the date of the said will is forged one and the signature of the said witness on the said document is denied." In the cross-examination, he also admits as follows: "P.W.4 is my Junior paternal uncle. It is not true to say that I eloped with the 2nd plaintiff and no marriage took place..........." "It is not true to say that I am denying my signatures on the will in order to get gain." 1. 16. The above evidence on behalf of the plaintiffs found favour with the trial Court to conclude issue No.1 in favour of the plaintiffs. The trial Court observed, in para-17, that "P.Ws.2 to 4 are close relatives. They got equal interest in the plaintiff's averments. Therefore, their own version is to be believed. Ex.A-3 shows that there was a mediation in between the parties, and that the defendant agreed to give some properties, and therefore, the plaintiffs have brought stamp papers expecting that they would get some properties...............". The conclusion drawn by the trial Court from the evidence, which is briefly referred to above, does not flow nor does it suggest the plaintiff's case and as such the said finding of the trial Court is not sustainable. .17. So far as the question No.3, framed as above, the trial Court rejected both the wills, Exs.B-3 and B4, primarily, on the ground that comparison of signatures by the trial Court itself resulted in the trial Court's opinion that the signatures do not tally. While the signature of P.W.5 on Ex.B-3, will, and his deposition, had to be proper and scientific to reach the said conclusions. The signatures of both the attestors viz., P.W.5 as well as D.W.3, on Ex.B-3, therefore, have to be compared to reach the conclusion as reached by the trial Court. The trial Court has only compared the signature of P.W.5 with Ex.B-3, but has not compared the signature of D.W.3 with Ex.B-3, who is the 2nd attestor. While the evidence of P.W.5 is clearly interested testimony so as to benefit the plaintiff No.2, his wife, D.W.3's evidence is independent. The trial Court has only compared the signature of P.W.5 with Ex.B-3, but has not compared the signature of D.W.3 with Ex.B-3, who is the 2nd attestor. While the evidence of P.W.5 is clearly interested testimony so as to benefit the plaintiff No.2, his wife, D.W.3's evidence is independent. The trial Court has commented that the defendant has not taken any steps to compare the signatures, without appreciating the evidence of P.W.5, who is only a last .witness of the plaintiffs, and who denied his signature on Ex.B-3, and prior to that, there was no opportunity for the defendant to seek the comparison of signature by the handwriting expert. .18. For this aspect, the learned counsel for the appellant has relied upon decisions of the Hon'ble Supreme Court reported in Fakhruddin V. The State Of Madhya Pradesh AIR 1967 SUPREME COURT 1326, Gaudiya Misson V. Shobha Bose And Another AIR 2008 SUPREME COURT 1012 and Thiruvengada Pillai V. Navaneethammal And Another 2008 (33) ALD 112 (SC). In Fakhruddin's case (1 supra), the view of the Supreme Court in para-11 would be more appropriate, which reads as follows: ."11. Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely he held that the two writings are by the same person. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely he held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that Court may accept that fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness." 2. 19. The Supreme Court, in the last of these decisions, referred to above, which is the latest, held on the aspect of Section 45 of the Indian Evidence Act, 1872, vide paras 14 and 15. The detailed analysis of the legal position in para-15, reads as follows:- "15. While there is no doubt that Court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the dispute finger impression.............." "But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal. The decision in Muralilal's case (supra) and Lalit Popli's case (supra), should not be construed as laying a proposition that the Court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed finger impressions. Further even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of Counsel, to ascertain the characteristics, similarities and dissimilarities. Further even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of Counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal." 1. 20. In this connection one more aspect is to be mentioned viz., the trial Court has rejected the wills on the ground that the defendant has not mentioned about the will in his reply notice, Ex.A-2, where as Ex.A-2 specifically says that ".............But, it is not true that Chandrayya died intestate about 11 years back......" and as such irrespective of mentioning the date of will, his reference to testamentary dispossession, is found in the reply notice. For all these reasons, the finding reached by the trial Court on the said aspect of Exs.B-3 and B-4, wills, cannot be sustained, especially as the expert's opinion was not before the Court. 2. 21. So far as the 4th question is being concerned, one does not find any consideration of the same, under the impugned judgment. The said question, covered under issue No.5, is proposed to be discussed under para-6 of the trial Court's judgment and except saying that there is no evidence on behalf of defendant, the said issue is concluded against the defendant. The manner, in which the trial Court has approached the issue, is highly unsatisfactory. Therefore, in the interest of justice and in the light of the legal position enunciated above, it would be just and necessary to remit the suit for fresh consideration by the trial Court to examine the matter afresh, as to enable parties to lead further evidence, if any, including expert's opinion. The impugned judgment is accordingly set aside and the suit is remanded for fresh consideration. The trial Court is at liberty to frame further issue(s) and give an opportunity to both sides to lead further evidence, if they so desire, and decide the suit afresh. However, in view of the fact that the suit is of the year 1991, the entire exercise shall be desirable to be completed before December 2008. The trial Court is at liberty to frame further issue(s) and give an opportunity to both sides to lead further evidence, if they so desire, and decide the suit afresh. However, in view of the fact that the suit is of the year 1991, the entire exercise shall be desirable to be completed before December 2008. The costs of this appeal shall abide by the result of the suit as directed here above. Further, the findings and/or observations herein are only for the purpose of dealing with findings of the trial Court and should not influence the trial Court in deciding the suit afresh. 3. 22. In the result, the appeal is allowed as indicated above.