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2011 DIGILAW 593 (AP)

L. James v. Subhashini Sighamony

2011-08-03

R.KANTHA RAO

body2011
Judgment :- This second appeal is filed against the decree and judgment dated 22.12.2005 passed by the X Additional Chief Judge (FTC), Hyderabad in A.S.No.162 of 2003 confirming the decree and judgment dated 22.01.2003 passed by the IV Additional Senior Civil Judge, City Civil Court, Hyderabad in O.S.No.1148 of 1996. 2. The defendants are the appellants. 3. I have heard Sri M.N.Ravikanth Acharya, the learned counsel appearing for the appellants/defendants and Sri Ravindrabharathi, learned counsel appearing for the respondent. 4. The brief facts necessary for considering the second appeal may be stated as follows: The respondent/plaintiff filed the suit for partition against the appellants in respect of the residential house built in an area of 270 sq. yards bearing door No.1-2-365/22, known as Rose Villa situate at Gaganmahal, Domalguda, Hyderabad. According to the respondent, the first appellant is her brother, the suit schedule house is the ancestral property belonging to her father late Abraham, who died intestate on 26.03.1996. In the written statement, the first appellant did not dispute his relationship with the respondent, but in the evidence, he denied the respondent to be his natural sister and put forward the theory that she was only brought up by his father late Abraham. 5. During his life time, late Abraham executed a registered Will on 13.02.1987 bequeathing the suit schedule house equally in favour of the first appellant and the respondent. Abraham himself divided the house in to “A and B” portions and bequeathed western side of the house with ground floor and first floor to the respondent and the eastern side of the house to the first appellant. Subsequently, however, on 04.09.1995 he cancelled the said Will by executing a registered cancellation deed. It is the version of the plaintiffs that Abraham was contemplating to execute another Will, but in the meanwhile, on 26.03.1996 he died of cardiac and respiratory failure. The plaintiff claims that even in the absence of the Will, she being a natural daughter of late Abraham, she is entitled to half share in the suit schedule house which is the self acquired property of Abraham and therefore, she filed the suit for partition claiming half share. 6. The second appellant is the wife of the first appellant. The plaintiff claims that even in the absence of the Will, she being a natural daughter of late Abraham, she is entitled to half share in the suit schedule house which is the self acquired property of Abraham and therefore, she filed the suit for partition claiming half share. 6. The second appellant is the wife of the first appellant. She was added as defendant to the suit in view of the relationship with the first appellant, but in fact, the respondent did not claim any rights against her. The contention of the first appellant is that subsequent to the cancelling of the Will his father late Abraham approached the Prudential Cooperative Urban Bank Limited, R.P.Road, Secunderabad for obtaining loan by mortgaging the schedule house. In connection with the said transaction, after ascertaining the procedure about the repayment of loan executed two affidavits and submitted them into the bank. It is said that Abraham was aged 75 years and one of the documents executed by him was said to be General Power of Attorney in favour of the second appellant empowering her to repay the loan amount of Rs.3 lakhs which he borrowed as mortgage debt from the bank by depositing the title deeds. It is said that the second appellant was repaying the loan amount in installments. By repaying the loan amount, she cleared only Rs.2 lakhs and Rs.1 lakh remained to be cleared. Thereafter, another affidavit was furnished by late Abraham to the bank authorities and the said affidavit which is notarized is to the effect that the first appellant- L. James is his son and the respondent is the daughter. The first appellant is his only heir in respect of the suit house “Rose Villa”. The respondent-Subhashini Sighamony has no claim in the said property and that any existing Will executed by him before the bank authorities is null and void and also that his executing the affidavit is out of his free Will without any coercion or force from any one. The first appellant contends that the said notarized affidavit furnished by his father late Abraham to the bank authorities amounts to a Will and by virtue of the said affidavit, after the death of his father, he became the absolute owner of the property and the plaintiff is not entitled to claim any share in the said property. 7. The first appellant contends that the said notarized affidavit furnished by his father late Abraham to the bank authorities amounts to a Will and by virtue of the said affidavit, after the death of his father, he became the absolute owner of the property and the plaintiff is not entitled to claim any share in the said property. 7. Before the learned trial Court, the respondent-Dr Subhashini Sighamony was examined as PW.1. One Mr. John Nelson Raj was examined as PW.2. The first appellant/defendant did not get into witness box, but his General Power of Attorney holder was examined as DW3 besides examining three more witnesses as DWs.1, 2 and 4. On behalf of the respondent/plaintiff, Exs.A.1 to A.37 were marked. On behalf of the appellants/defendants, Exs.B.1 to B.30 were marked. 8. In the written statement filed by the appellants through General Power of Attorney holder, they did not dispute that the respondent is not the daughter of late Abraham. Moreover, they positively admitted the relationship as respondent and first appellant are the natural children of late Abraham. The appellants, subsequent to the filing of the written statement filed a petition to amend the written statement pleading that the respondent is not the sister of the first appellant. The said petition was dismissed by the trial Court and subsequently it became final. The first appellant had not offered himself as witness on his behalf and from his conduct both the Courts below drew adverse inference against him to the effect that had he entered the witness box, he would not have withstood the cross-examination which is to the effect that the respondent is his own sister. Further in Ex.B.8-affidavit executed by late Abraham which the appellants wanted the Court to give a finding that it is the last Will left by late Abraham. It is clearly mentioned that the respondent is the natural daughter of late Abraham. Considering all these aspects, both the Courts below have concurrently held that the respondent is the sister of the fist appellant, they are the children of late Abraham and at subsequent stage of the suit, the first appellant took a false plea that the respondent is not his sister. This Court will not interfere with the said finding in this second appeal which relates to a fact. 9. This Court will not interfere with the said finding in this second appeal which relates to a fact. 9. The grounds urged in the second appeal by the appellants, in fact relate to questions of fact. However, this Court on hearing both parties, proceeded to hear the second appeal on framing the substantial question of law which is to the effect that whether Ex.B.8-affidavit furnished by late Abraham to the bank amounts to a Will and whether the said document has been proved by the appellants in accordance with law? 10. Section 2(h) of the Indian Succession Act, 1925 defines the Will as: “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” Therefore, the document can be considered to be the Will only when: (a) there is a legal declaration of the intention by the testator, (b) the declaration must be with respect to the property of the testator, and (c) that the declaration should be effective and operative only from after the death of the testator which implies that the testator has liberty to revoke the same at any time during his life time. 11. Thus, the preliminary requirement of a Will is that the testament must be legal i.e. it must be in conformity with the provisions of the Indian Succession Act. Section 63 of the Indian Succession Act lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person signing the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the time, and no particular form of attestation shall be necessary. 12. In the instant case, the document sought to be relied upon by the appellants is an affidavit which was said to have been furnished by late Abraham to the bank authorities in connection with borrowing a mortgage debt and repayment of the said debt. 12. In the instant case, the document sought to be relied upon by the appellants is an affidavit which was said to have been furnished by late Abraham to the bank authorities in connection with borrowing a mortgage debt and repayment of the said debt. It is settled law that when there are suspicious circumstances surrounding the Will, the said circumstances have to be dispelled by the propounder of the Will. In this case, the first appellant wanted the Courts below to give a finding that Ex.A.8-affidavit is a Will and it is proved in accordance with law. 13. Absolutely, nothing has been indicated in Ex.A.8-affidavit as to why late Abraham wanted to bequeath the suit schedule property in favour of the first appellant. The affidavit is merely in the form of giving an assurance to the bank authorities for the purpose of repayment of loan by the appellants. It is mentioned in the affidavit that the respondent-Dr Subhashini Sighamony has no claim in the suit property. But nothing is indicated therein as to the intention of late Abraham when he was bequeathing part of the property in favour of the respondent, who is his own daughter. The circumstances, therefore, indicate that the affidavit was not furnished with an intention to bequeath the property in favour of the first appellant. What all can be understood from the document is that late Abraham assured the bank authorities that the respondent has no claim in the suit property. If a person asserts before the bank authorities in connection with a loan transaction that his daughter has no claim in the property and merely stated that his son is the only heir for the property, it can not be said that there is any bequest in favour of the first appellant. Nothing also has been indicated in the said document that the property was exclusively vested in the first appellant after the death of late Abraham. Late Abraham only stated that the respondent has no right though she is his daughter and the first appellant is his only heir. Therefore, it cannot be said that there is a legal declaration of the intention of late Abraham about the suit schedule property which has to be carried in to effect after his death. Late Abraham only stated that the respondent has no right though she is his daughter and the first appellant is his only heir. Therefore, it cannot be said that there is a legal declaration of the intention of late Abraham about the suit schedule property which has to be carried in to effect after his death. Moreover, earlier to Ex.A.8 late Abraham executed Ex.A.1-Will bequeathing suit schedule property equally in favour of the first appellant and the respondent by a registered instrument and subsequently cancelled the Will by means of Ex.A.2-registered cancellation deed. 14. The contention of the respondent is that due to coercion, undue influence brought on by the first appellant against late Abraham, he cancelled the Will, but actually he was contemplating to execute the Will after the death of his wife. If at all, really late Abraham executed any Will, he would have executed it in the form of a Will, but not in the form of an affidavit submitted to the bank. It is thus obvious from the nature of the transaction during which Ex.A.8-affidavit was submitted by late Abraham that his only intention was to convince the bank authorities about the repayment of loan by the defendants without any intervention of the respondent claiming rights in the property. Therefore, in my considered view, Ex.A.8-affidavit furnished by late Abraham to the bank authorities does not satisfy the legal requirements of the Will and it cannot be termed as Will. 15. Even if Ex.A.8-affidavit is considered as Will, having gone through the evidence on record placed by the appellants, I am of the view that the said document has not been proved to be a Will and proved in accordance with law as executed by late Abraham. Ex.A.8-affidavit is only a notarized affidavit wherein he stated that the first appellant is the only heir of his property “Rose Villa” i.e. suit schedule property. DW.4-notary was examined to prove Ex.A.8 and A.9-affidavit executed by late Abraham. Admittedly, he is not an attesting witness either to Ex.A.8 or A.9. The trial Court observed that DW.4 did not make any satisfactory explanation as to the corrections made in Ex.A.8 and moreover, he signed in Ex.A.8 only in the capacity of a notary. DW.4-notary was examined to prove Ex.A.8 and A.9-affidavit executed by late Abraham. Admittedly, he is not an attesting witness either to Ex.A.8 or A.9. The trial Court observed that DW.4 did not make any satisfactory explanation as to the corrections made in Ex.A.8 and moreover, he signed in Ex.A.8 only in the capacity of a notary. His evidence does not show that late Abraham wanted to bequeath his properties in favour of the first appellant, gave instructions to the notary or any other person to scribe a document incorporating the intention to bequeath the suit schedule property in favour of the first appellant. Late Abraham did not mention in Ex.A.8 about the properties belonging to him, executing Ex.A.1-registered Will in respect of the suit schedule house in favour of the first appellant and the respondent and subsequent cancellation of the said document by the registered instrument Ex.A.2-cancellation deed. There is no evidence to show that late Abraham attested Ex.A8 in the presence of the testator of the affidavit. Section 68 of the Indian Evidence Act which deals with proof of the document required by law to be attested and the Will in particular lays down as follows: “If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence”. 16. Further Ex.A.8 affidavit does not confirm to the requirements of Section 63 of the Indian Evidence Act, 1925. It lays down that “a Will shall be executed by the testator in the presence attesting witnesses and it shall be attested by two or more witnesses”. In the instant case, there is no evidence to show that Ex.A.8- affidavit was executed on the directions of late Abraham or that he signed in the presence of at least one attesting witness and also that the attesting witness signing on the affidavit in the presence of late Abraham. Thus, in the instant case, the suspicious circumstances surrounding Ex.A.8 have not been dispelled by the first appellant. Thus, in the instant case, the suspicious circumstances surrounding Ex.A.8 have not been dispelled by the first appellant. The said document has also not been executed in accordance with the provisions of Section 63 of the Indian Succession Act and further it has not been proved in accordance with Section 68 of the Indian Evidence Act. The findings of both the Courts below that Ex.A.8 cannot be said to be a Will executed by late Abraham, it is not genuine and it has not been proved in accordance with law do not require any interference in the second appeal. The second appeal therefore, fails and it is liable to be dismissed. 17. In the result, the second appeal is dismissed with costs confirming the decree and judgment dated 22.12.2005 passed by the X Additional Chief Judge (FTC), Hyderabad in A.S.No.162 of 2003 concurring with the decree and judgment dated 22.01.2003 passed by the IV Additional Senior Civil Judge, City Civil Court, Hyderabad in O.S.No.1148 of 1996.