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2013 DIGILAW 286 (AP)

D. Venkateswara Rao v. D. Rama Seethamma

2013-04-13

N.R.L.NAGESWARA RAO

body2013
JUDGMENT:- Defendant Nos.7, 19 and 20 on OS No.407 of 1984 on the file of the Court of III Additional Senior Civil Judge, Vijayawada are the appellants herein. 2. The suit was filed by the wife of one Devineni Krishna Rao who is said to have died intestate on 13.3.1984 issueless and the plaintiff being only surviving legal heir. He was said to be hale and healthy by the date of his death. The plaintiff was the second wife, who was married after the death of first wife of Devineni Krishna Rao. The defendants 1 to 8 are the near relatives of the deceased-Devineni Krishna Rao and there was no cordial relationship between the deceased and defendants 1 to 8. The suit schedule properties belong to her. Initially, all the defendants 1 to 8 colluded and claimed that the deceased executed a Will on 15.2.1984 containing dispossessions as mentioned in Ex.B1 Will. According to the case of the plaintiff, subsequently disputes arose between defendant Nos.1 to 5 and defendant Nos.6 to 8 are claiming that late Devineni Krishna Rao executed on a Will on 12.3.1984 and, therefore, they are entitled for the property. It was also alleged that defendant No.14 claimed that an extent of Acs.2.66 cents comprised in RS Nos.556, 533/1 and 554/2 was alleged to have been sold by Devineni Krishna Rao, which is not true. As the defendant Nos.1 to 5 are claiming title on one side under the Will dated 15.2.1984 (Ex.B1) and as defendant Nos.7 and 8 claims to be the beneficiaries under the Will dated 12.3.1984, which is Ex.B3 and as they are in illegal possession of the suit schedule properties, after issuing necessary notice the suit was filed for declaration of exclusive title to the properties and for possession and also for profits. 3. Defendant Nos.1 to 6 contended that late Devineni Krishna Rao executed a Will in their favour on 15.2.1984 making the particulars of the bequest and also giving some property to the plaintiff. They claim to be in possession and enjoyment of the property. It was also further 'pleaded that part of the property was acquired and OP No.392 of 1982 was pending for reference under the Land Acquisition Act, 1894 and in that on the basis of Ex.B1, the legal representatives were brought on record. They claim to be in possession and enjoyment of the property. It was also further 'pleaded that part of the property was acquired and OP No.392 of 1982 was pending for reference under the Land Acquisition Act, 1894 and in that on the basis of Ex.B1, the legal representatives were brought on record. They also claim to have pleaded the existence of the Will in OS No.692 of 1984 filed by defendant Nos.7 and 8 for an injunction. It was not contested either by the plaintiff or the other defendants. Therefore, they pleaded for dismissal of the suit. 4. Defendant No.7 filed a written statement, which was adopted by defendant Nos.6 and 8 contending that late Devineni Krishna Rao has got affection towards them and he expressed his intention several times even some time prior to the death and they have taken care of the deceased Devineni Krishna Rao. According to him, on 12.3.1984 in the morning hours, the Will Ex.B3 was executed in a sound and disposing state of mind and on the night on the even date he died. The plaintiff and the other defendants are also aware. Therefore, while disputing the Ex.B1 Will, they also contended that the suit of the plaintiff is not valid. Defendant No.14 claimed purchase of the property on 25.1.1984 under agreement from late Devineni Krishna Rao. Pending disposal of the suit, defendant No.14 died and defendant Nos.17 and 18 are added as the legal representatives. 5. On the basis of the above pleadings, necessary issues have been framed for trial. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A1 to A68. On behalf of the defendants, DWs.1 to 7 were examined and marked Exs.B1 to B6 and Ex.X1. 6. After considering the evidence on record, the Court below decreed the suit of the plaintiff. Aggrieved by the said judgment, AS No.1387 of 1998 was filed by defendant Nos. 1 to 5; Defendant Nos.7, 19 and 20 filed the Appeal Suit No. 1925 of 1998. 7. 6. After considering the evidence on record, the Court below decreed the suit of the plaintiff. Aggrieved by the said judgment, AS No.1387 of 1998 was filed by defendant Nos. 1 to 5; Defendant Nos.7, 19 and 20 filed the Appeal Suit No. 1925 of 1998. 7. The matters came up for hearing for several times and when the matters were heard in-part and on 15.2.2013 when there was a representation on behalf of the Counsel for the appellants that there is likelihood of compromise between the parties, it was adjourned to 21.2.2013 and thereafter on 27.2.2013, on which date it was reported by both the parties that the matter has been settled and for reporting of the compromise, the matter was posted to 6.3.2013 and on 6.3.2013 the appeals were dismissed as withdrawn. Thereafter, on 15.3.2013 ASMP No.853 of 2013 was filed by the 2nd appellant in AS No.1925 of 1998 and ASMP No.879 of 2013 was filed by the 3rd appellant represented by the GPA holder who is 2nd appellant contending that withdrawal of the appeal by the Counsel is without instructions and it is at the instance of the 1st appellant. Similar applications were filed in AS No.1387 of 1998, but, however those applications i.e., ASMP Nos.907 and 908 of 2013 are dismissed as not pressed and the Counsel for the appellant in AS No.1387 of 1998 and the respondents represented that they are abiding by the compromise that has been entered into as reported before the Court and they have also opposed the present application of the appellants and also the merits. In view of the above circumstances and taking into consideration that some allegations were made against the Senior Counsel, who was representing the parties, this Court has heard the application for restoration of the appeal (AS No.1925 of 1998) by withdrawing the order dated 6.3.2013 and also the merits of the appeal in AS No.1925 of 1998. 8. Heard Sri Vedula Venkata Ramana, the learned Senior Counsel for the appellants and the learned Counsel for the respondents. 9. Therefore, the points that arise for consideration are: 1. Whether the applications viz., ASMP Nos.853 and 879 of 2013 so far as it relates to the appellant Nos.2 and 3 is concerned, whether the judgment dated 6.3.2013 is to be recalled and whether the appeal is to be restored to be filed? 2. 9. Therefore, the points that arise for consideration are: 1. Whether the applications viz., ASMP Nos.853 and 879 of 2013 so far as it relates to the appellant Nos.2 and 3 is concerned, whether the judgment dated 6.3.2013 is to be recalled and whether the appeal is to be restored to be filed? 2. Whether the Will EX.B3 set up by the appellants is true, valid and binding on the plaintiff? 3. Whether the judgment and decree passed by the Court below is legal and sustainable? Point No.1: 10. The grounds stated by appellant Nos.2 and 3, under a common affidavit given by appellant No.2, are in detail mentioned in ASMP No.879 of 2013. The allegation in the affidavit clearly goes to show as under: "While it being so, on 5.3.2013 the appellant No.1 in the Appeal Suit No.1925 of 1998 i.e., my husbands brother sent some papers and asked me to sign on those papers. On verification I came to know that the papers are intended for withdrawal of the appeal suit. But I reused to sign and I asked my son and he also informed to me that he is not intending to withdraw and he wants to contest the matter. But to our surprise we came to know that it is on 6.3.2013 this Court passed an order dismissing both the appeal suits viz., 1925 of 1998 and 1387 of 1998 as withdrawn based on the representation of the Counsel as the matter has been settled outside the Court. Neither myself nor my son signed on any document or given any instruction to the original appellant No.1 in AS No.1925 of 1998 to withdraw the appeal. The representation was made as though compromise was entered and the matter was settled amicably for withdrawal of the appeal suit. Without my consent and without my signature and without there being any instruction to the Counsel, the statement was made before this Court and accordingly, appeal suit was withdrawn. The statement made by the Court is nothing but fraud and in breach of confidence reposed on the Counsel. Since the appeal suit filed was withdrawn without our consent and written instructions to our Counsel any statement made by our Counsel is not binding on us and the same is not valid for the purpose of valid withdrawal." 11. The statement made by the Court is nothing but fraud and in breach of confidence reposed on the Counsel. Since the appeal suit filed was withdrawn without our consent and written instructions to our Counsel any statement made by our Counsel is not binding on us and the same is not valid for the purpose of valid withdrawal." 11. In fact, to this application, the terms of agreement entered into between the parties and also a letter said to have been given on 5.3.2013 to be signed by the second appellant were enclosed. The compromise deed does not contain the signature of the appellant Nos.2 and 3. In fact, the learned Senior Counsel, to whom letter dated 5.3.2013 addressed, was present when the matter was called and it was represented that after the instructions only the appeal was withdrawn and the signatures, if not taken, it could be for non-availability or otherwise and, therefore, he has acted bona fidely. In fact, from the material available on record and also during the trial, it was only the appellant No.1 who was pursuing the cause and filed the written statement and gave evidence also and neither the second appellant nor the third appellant who were added as defendant Nos.19 and 20 did not go into the box. Therefore, it is quite clear that any understanding placed before the Court by the appellant No.1 can only be taken as with the consent of the appellants herein. In fact, there are no allegations in the affidavit to show that 1st appellant who was hitherto looking after the litigation has connived with any of the parties in order to cause loss, misinformation was given to the Counsel. The terms of the compromise also clearly disclosed that the interests of both the parties under the Will have been taken care of and the factum of the compromise and settlement is admitted by the defendant Nos.1 to 5 who have set up the Will Ex.B1. The appellants herein are not challenging that part of compromise which was entered by defendant Nos.1 to 5. The point is as to whether the representation made by the Counsel for the appellants can be considered to be valid and binding on the appellants. The appellants herein are not challenging that part of compromise which was entered by defendant Nos.1 to 5. The point is as to whether the representation made by the Counsel for the appellants can be considered to be valid and binding on the appellants. In this connection, it will be useful to refer to a decision reported in Bakshi Dev Raj and another v. Sudheer Kumar, 2011 (6) ALD 1 (SC) = (2011) 8 SCC 679 , whereunder the authority of the Counsel to report compromise on behalf of the parties is considered. In fact, the Apex Court was also of the view that when terms are reduced into writing, it would be wiser for the parties to get it recorded in the Court, but that by itself will not curtail the right of the Counsel. Further, it was held in Paras 30 to 32 of the judgment, as under: "30. The analysis of the above decisions make it clear that the Counsel who was duly authorized by a party to appear by executing Vakalatnama and in terms of Order III Rule 4, empowers the Counsel to continue on record until the proceedings in the suit are duly terminated. The Counsel, therefore, has power to make a statement on instructions from the party to withdraw the appeal. In such circumstance, the Counsel making a statement on instructions either for withdrawal of appeal or for modification of the decree is well within his competence and if really the Counsel has not acted in the interest of the party or against the instructions of the party, the necessary remedy is elsewhere. 31. Though learned Counsel for the appellant vehemently submitted that the statement of the Counsel before the High Court during the course of hearing of Second Appeal No.19 of 2005 was not based on any instructions, there is no such material to substantiate the same. No doubt, Mr. Garg has placed reliance on the fact that the first appellant was bedridden and hospitalized, hence, he could not send any instruction. According to him, the statement made before the Court that too giving of certain rights cannot be sustained and beyond the power of the Counsel. 32. It is true that at the relevant time, namely, when the Counsel made a statement during the course of hearing of second appeal one of the parties was ill and hospitalized. According to him, the statement made before the Court that too giving of certain rights cannot be sustained and beyond the power of the Counsel. 32. It is true that at the relevant time, namely, when the Counsel made a statement during the course of hearing of second appeal one of the parties was ill and hospitalized. However, it is not in dispute that his son who was also a party before the High Court was very much available. Even otherwise, it is not in dispute that till filing of the review petition, the appellants did not question the conduct of their Counsel in making such statement in the course of hearing of second appeal by writing a letter or by sending notice disputing the stand taken by their Counsel. In the absence of such recourse or material in the light of the provisions of the CPC as discussed and interpreted by this Court, it cannot be construed that the Counsel is debarred from making any statement on behalf of the parties. No doubt, as pointed out in Byram Pestonji (supra), in order to safeguard the present reputation of the Counsel and to uphold the prestige and dignity of legal profession, it is always desirable to get instructions in writing." 12. In view of the narration of the facts in the affidavit that appellant No.1 is said to have gone to the appellant No.2 and shown the document and in view of the fact that on the earlier occasion, both parties have represented that the matter is likely to be compromised, it cannot be said that the Counsel has acted without any bona fides. In fact, if really on 5.3.2013 the document shown by appellant No.1 are not agreeable to the appellant No.2, there is no reason as to why immediately on 6.3.2013 when the matter was posted before the Court to appear and oppose the compromise and there is also no reason as to why no notice was sent to the Counsel for not reporting of any compromise. Therefore, have no hesitation in holding that compromise said to have been effected is with the knowledge and consent, but, however, the appellant No.2 seems to have changed the mind, evidently, for the reason the first Will Ex.B1 was given up and if at all any rights are to be determined, it is only under Ex.B3 Will set up by defendant Nos.7 and 8 ignoring the fact that defendant No.7 himself is admitting the compromise and did not oppose the same. The fact that appellant No.3 is in USA is no bar since the appellant No.2 claims to be his GPA holder. Therefore, for all the above reasons, though legally and factually there are no merits in allowing the applications, but since the reputation of the Senior Counsel and his action is being questioned, both applications are allowed and the appeal is being decided on merits. Point Nos.2 and 3: 13. According to the case of defendant Nos.7 and 8, late Devineni Krishna Rao was treating them as his children and he has expressed his desire to convey the properties under a Will even about two years prior to his death. He is said to be suffering with some illness and on 12.3.1984 at about 11 a.m., he is said to have executed a Will and died on the night of 12.3.1984. 14. According to the case of the plaintiff, the death of the deceased was so sudden and there was no contemplation of death nor any need for Devineni Krishna Rao to execute the Will. In fact, when we consider the Ex.B1 Will, which is part of the record, it recites that Devineni Krishna Rao was hale and healthy and with a cool mind and has got good health. This Will is dated 15.2.1984. When we come to Ex.B3, which is dated 12.3.1984, it shows that the deceased was aged about 65 years and he was suffering from ill-health since two years and has got heart ailment and asthma and in spite of taking medicines he could not gain the health. Therefore, it is for the propounder of the Will to show that the deceased was having ill-health and he has no hope of survival and, therefore, he intended to execute the Will. Therefore, it is for the propounder of the Will to show that the deceased was having ill-health and he has no hope of survival and, therefore, he intended to execute the Will. It is to be noted that there is no evidence adduced of any nature by defendant Nos.7 and 8 to the effect that the deceased was treated in any hospital and as to what are the medicines that were given to him. If a man is to suffer from heart disease for a period of two years prior to the death, then naturally, it is expected that there will be continuous treatment and the absence of such an evidence clearly goes to show that the deceased never contemplated his death and there was no need for him to execute a Will particularly on the morning on 12.3.1984, when he died unexpectedly on the night-of 12.3.1984. If the version of the appellants is to be believed that since two years prior to the death, Devineni Krishna Rao expressed his desire to execute the Will, there is no reason as to why the Will was not executed earlier and it was not registered by Devineni Krishna Rao, if really he was sick. In this connection, the evidence of DW5 who is said to be the attestor on the Will goes to show that Devineni Krishna Rao was healthy and he was taking medicine for weakness. According to him, the Will was executed at about 10 or 10.30 a.m. and one N. Krishna Rao was the scribe. His evidence clearly goes to show that defendant No.6 was also present and the plaintiff was also present there. His evidence shows that he was working with defendant No.6. According to him, he was brought to the Court by defendant No.7 who is DW4. He is not able to say even the cause of death of the deceased. 15. DW7 is another attestor, who claims to be neighbour of Devineni Krishna Rao, and he was called by DW4 and by then the plaintiff, defendant Nos. 6, 7, scribe and others were present. His evidence is also not clear as to the ailment of the deceased except stating that the deceased was on bed. His evidence goes to show that the Will was kept by Devineni Krishna Rao with him. 6, 7, scribe and others were present. His evidence is also not clear as to the ailment of the deceased except stating that the deceased was on bed. His evidence goes to show that the Will was kept by Devineni Krishna Rao with him. It also further goes to show that the scribe wrote the Will to the dictation of Devineni Krishna Rao and defendant No.6 and no other documents were shown to the scribe. Evidently, the scribe of the Will could not be examined as he is no more. If really Devineni Krishna Rao is to give the entire instructions without even referring to any paper, it is difficult to believe as to how he could have mentioned the particulars of several survey numbers with boundaries also. Even, in fact, the evidence of DW5 does not also show that any documents were referred at the time of the alleged Will. The presence of the plaintiff in the house was admitted by him. 16. Then comes to the evidence of DW4, who is the 7th defendant. He was said to be aged about "41" years by the time he gave evidence on 5.2.1998 and by the time the Will was said to have been executed, he will be aged about "25" or "26" years. It can be anybody's comprehension as to how at that stage he could have knowledge on several facts when his father-6th defendant is active. His evidence goes to show that the plaintiff and her husband were looking after them with affection. At this stage, it is to be mentioned that Devineni Krishna Rao has no children and if at all he wanted to convey the property to the brother's children, naturally, they should be staying in the house of Devineni Krishna Rao and serving them or at least there should have been an attempt for adoption. But nothing happened. According to him, the deceased was taking medicines for heart ailment. His evidence goes to show that a rough was prepared by the scribe and it does not disclose as to on what material supplied by the Devineni Krishna Rao the rough was prepared. In chief-examination that the plaintiff was not present when the Will was executed which is contrary to the evidence of other witnesses. His evidence goes to show that a rough was prepared by the scribe and it does not disclose as to on what material supplied by the Devineni Krishna Rao the rough was prepared. In chief-examination that the plaintiff was not present when the Will was executed which is contrary to the evidence of other witnesses. He gives a strange explanation in cross-examination that he did not offer to take Devineni Krishna Rao to any big Doctor as he will not come, but, according to him he was taking treatment under a private practitioner, whose particulars are not mentioned. His evidence is positive that no documents were shown by Devineni Krishna Rao. 17. Therefore, if the evidence of DWsA, 5 and 7 is considered, there is no compelling reason for Devineni Krishna Rao to execute a Will in the morning on 12.3.1984. Evidently, Will be executed when there is contemplation of death or for settlement of the properties. In fact, either the Will Ex.B1 or the Will-Ex.B3 does not show as to why the wife was denied large share of the property and as to why the wife should be given only a pittance. Though the lower Court found that no share was given to the wife, but a careful reading of Ex.B3 goes to show that she was given a nominal property. The evidence on record or the pleadings does not disclose as to why she should be denied the right of succession of the major portion of her husband's property. A feeble allegation was made that Devineni Krishna Rao apprehended that the plaintiff may kill him for which there is absolutely no evidence and on the other hand the evidence on record clearly goes to show that till the death, they lived together and there was no truth in the said allegation. 18. The lower Court has taken into consideration an affidavit-Ex.A6 said to have been given by 6th defendant-father of defendant Nos.7 and 8 to the effect that Devineni Krishna Rao died intestate and this affidavit though denied by DW4, 6th defendant did not come into box and deny the same. In order to keep 6th defendant away from the cross-examination, a plea was taken that he was sick, bedridden and cannot give any evidence. To prove the same, no material document is filed about his ill-health or incapacity. In order to keep 6th defendant away from the cross-examination, a plea was taken that he was sick, bedridden and cannot give any evidence. To prove the same, no material document is filed about his ill-health or incapacity. In fact, it is the claim of the plaintiff that 6th defendant was behind all this litigation and the evidence on record clearly goes to show that he is the person, who is alleged to have associated with the Will. Therefore, non-examination of 6th defendant either in the Court or by Commission is a clear case where the material evidence was kept back by the defendants and the lower Court has rightly found this as a strong circumstance to disbelieve the Will. 19. It is not in dispute that the law is well settled that it is the propounder of the Will that has to prove the same and dispel the surrounding circumstances. There is no evidence of wealth of love for Devineni Krishna Rao towards defendant Nos.7 and 8 for conveying the almost total property belonging to him; there is no evidence that defendant Nos.6 to 8 at any time have taken care or looked after the deceased-Devineni Krishna Rao; there is no proof that the deceased suffered with any incurable disease contemplating death; there is no reason given as to why on the morning of 12.3.1984 Devineni Krishna Rao should suddenly decide to execute a Will and having so decided why it was not registered. 20. Added to all the above circumstances, it is to be noted that the presence of the wife is almost admitted from the evidence on record. If Devineni Krishna Rao was giving a disposition with the consent or knowledge of the plaintiff, there is no reason as to why he did not take her attestation and as to why the Will was not given to her custody as she is the natural Class I heir of Devineni Krishna Rao. There is no reason as to why such a Will should be handed over to 7th defendant and in fact this is contrary to the evidence of DW5 wherein he stated that Devineni Krishna Rao kept the Will with himself. The exclusion of the wife for substantial share of the property is also another circumstance, which is a suspicious one. 21. The exclusion of the wife for substantial share of the property is also another circumstance, which is a suspicious one. 21. The learned Counsel for the appellant relied on a decision reported in Mahesh Kumar (dead) by LRs. v. Vinod Kumar and others, 2012 (4) ALD 71 (SC) = (2012) 4 SCC 387 and according to him the execution of the Will having been proved by the evidence of DWs.4, 5 and 7 and the reasons being acceptable, the plaintiff has failed to take steps to prove the Will as a forged one and consequently her defence cannot be considered. This is extreme proposition, which cannot be accepted from the facts of the case. In fact, the evidence of attestor does not inspire confidence and the law is that it is for the propounder to prove the due execution and when once it is not proved, the propounder has to fail. In fact, it is defendant Nos.6 to 8 who filed a petition to send the document Ex.B3 for comparison with a registered sale deed dated 9.7.1964 and the said petition was dismissed. The said order was not challenged. Therefore, when defendant Nos.6 to 8 having made an attempt to get expert opinion and failed to get the same, no blame can be made against the plaintiff. Therefore, I have no hesitation in holding that the appellants have failed to prove the execution of the Will Ex.B3 and there are no merits in the appeal and the same is liable to be dismissed. 22. Accordingly, in view of the orders in ASMP Nos.853 and 879 of 2013 the appeal having been restored to file and the appeal is dismissed as there are no merits. The amounts, which are lying to the credit of the suit, the plaintiff is entitled to receive the same. It is needless to say that any compromise that has been accepted by the first appellant shall be binding on the parties. In the circumstances, each party do bear its own costs.