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2014 DIGILAW 64 (AP)

C. Subbamma v. C. Nuchamma

2014-01-21

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2014
Judgment L. Narasimha Reddy, J. These two L.P.As. arise out of O.S.No.100 of 1983 on the file of Additional Subordinate Judge, Guntur. For the sake of convenience, the parties are referred to as arrayed in the suit. The 1st plaintiff is the mother of the 2nd plaintiff. They filed the suit for partition and separate possession of plaint ‘A’ and ‘B’ schedule properties, against the defendants. The background of the case in brief is that Sri Subba Reddy and Sri Yerra Reddy are the sons of one Sri Veera Reddy. The 1st plaintiff is the wife of Yerra Reddy and the 2nd plaintiff is their daughter. The 1st defendant is the wife of Subba Reddy, the 2nd defendant is their son, the 3rd defendant is their daughter and 4th defendant is the wife of the 2nd defendant. Subba Reddy died in the year 1976, whereas Yerra Reddy died in the year 1983. The case of the plaintiffs was that when they demanded for partition after the death of Yerra Reddy, the defendants did not agree for the same. The defendants did not dispute the relationship. It was, however, pleaded that the disputes between Yerra Reddy and his wife, the 1st plaintiff, arose way back in the year 1952 and through Ex.A1, dated 15.09.1952, an extent of Ac.1.12 cents in D.No.99 of Annaparru Village, Prattipadu Taluq, Guntur District, belonging to the joint family, was given to the plaintiffs in full and final settlement of their claim. It was further pleaded that Yerra Reddy executed the Will, Ex.B2, on 22.11.1980, bequeathing his property to the 4th defendant, who is the daughter of the 3rd defendant and wife of defendant No.2. The trial Court disbelieved the Will and passed a preliminary decree through judgment, dated 11.07.1988. Thereafter, a final decree was passed through order, dated 03.07.1992, in I.A.No.1063 of 1988. The defendants filed A.S.No.1870 of 1988 against the preliminary decree and A.S.No.377 of 1994 against the final decree before this Court. Both the appeals were dismissed by a learned Single Judge of this Court through a common judgment, dated 26.02.2002. Hence, these two L.P.As. by the defendants. Sri V.L.N.G.K. Murthy, learned counsel for the defendants, submits that the Will, Ex.B2, was proved by examining not only the scribe but also both the attestors and still, the trial Court and the learned Single Judge of this Court disbelieved the same just by expressing suspicion. Hence, these two L.P.As. by the defendants. Sri V.L.N.G.K. Murthy, learned counsel for the defendants, submits that the Will, Ex.B2, was proved by examining not only the scribe but also both the attestors and still, the trial Court and the learned Single Judge of this Court disbelieved the same just by expressing suspicion. He contends that one of the factors taken into account by the trial Court and the learned Single Judge of this Court was that no endorsement was made in Ex.B2 to the effect that the thumb impression of the executant was that of his right hand and neither any provision of law cited nor any decided case was relied, in that behalf. He submits that the relationship between Yerra Reddy and the plaintiffs virtually got snapped about half a century ago, as is evident from Ex.A1, and ever since then, Yerra Reddy was living with the defendants and in that view of the matter, there cannot be any suspicion about the Will. He further submits that assuming that the property is liable to be partitioned, the one covered by Ex.A1 ought to have been kept to the share of the plaintiffs, since it was very much part of the joint family assets. He submits that item No.6 of the plaint ‘A’ schedule was the self-acquisition of Subba Reddy and the same ought to have been excluded from partition. Sri B.Adinarayana Rao, learned counsel for the plaintiffs, on the other hand, submits that there are several contradictions in the evidence of the so-called attestors as well as the scribe to Ex.B2 and the trial Court and the learned Single Judge of this Court have taken the same into account, while examining the validity of the Will. He submits that Ex.A1 was executed only in recognition of the obligation of the family and in particular, of Yerra Reddy towards the 1st plaintiff and that item of property cannot be made the subject matter of partition. He submits that the concurrent judgments of the trial Court and the learned Single Judge of this Court do not warrant interference. The suit for partition filed by the plaintiffs was opposed by the defendants raising several contentions including the one based upon a Will, Ex.B2. He submits that the concurrent judgments of the trial Court and the learned Single Judge of this Court do not warrant interference. The suit for partition filed by the plaintiffs was opposed by the defendants raising several contentions including the one based upon a Will, Ex.B2. The trial Court framed the following issues and additional issues in the respective suits for its consideration: O.S.No.100 of 1983: Issues: (1) Whether the plaintiffs are entitled to the partition of suit schedule property into two equal shares, if so, whether they are entitled to get one such share as alleged in the plaint? (2) Whether the plaintiffs are entitled to the future mesne properties, if so, to what extent? Additional Issue: (1) Whether Item No.6 of plaint ‘A’ schedule is the self acquired property of late Chereddy Subbareddy? On behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 and A2 were filed. On behalf of the defendants, D.Ws.1 to 7 were examined and Exs.B1 to B5 were filed. Preliminary and final decrees were passed by the trial Court. A.S.Nos.1870 of 1988 and 377 of 1994 were filed. The learned Single Judge did not frame any points as such, but addressed the entire controversy. We find that the following points arise for consideration in these L.P.As: (1) Whether the defendants have proved the execution and validity of Ex.B2? (2) Whether the property covered by Ex.A1 is liable to be excluded from partition? (3) Whether item No.6 of plaint ‘A’ schedule property is liable to be excluded? Point No.1: While the plaintiffs represent the branch of Yerra Reddy, the defendants represent the branch of his elder brother, Subba Reddy. The relationship is not disputed nor it was pleaded that there was any prior partition. Till he was alive, Subba Reddy acted as Kartha of the family and after his death in the year 1976, Yerra Reddy assumed that role. The record discloses that the 1st plaintiff, wife of Yerra Reddy, left the family, together with the child, 2nd plaintiff, in or around 1952. An extent of Ac.1.12 cents was given for their maintenance under Ex.A1, dated 15.09.1952. The nature of relationship between Yerra Reddy on the one hand and the plaintiffs on the other between the date of Ex.A1 and the date of filing of the suit is not immediately available nor any attention paid to it. An extent of Ac.1.12 cents was given for their maintenance under Ex.A1, dated 15.09.1952. The nature of relationship between Yerra Reddy on the one hand and the plaintiffs on the other between the date of Ex.A1 and the date of filing of the suit is not immediately available nor any attention paid to it. The plaintiffs filed the suit soon after Subba Reddy died in the year 1983. The main plank of defence of the defendants was Ex.B2, a Will, said to have been executed by Yerra Reddy on 22.11.1980. The defendants were under obligation not only to prove the execution of the Will, but also to explain the suspicious circumstances, if any. In the context of explaining the suspicious circumstances, two factors virtually neutralized each other. Exclusion of natural heirs, that too, the wife and a daughter of the testator from succession is certainly a suspicious circumstance in relation to the Will said to have been executed by Yerra Reddy. At the same time, if one takes into account, the fact that the plaintiffs were living separately from Yerra Reddy at least from 1952 would make one feel that the execution of a Will by him in favour of his kith and kin is not at all exceptional. If he was in fact living with the defendants till his death, anybody in his place would have the propensity to express his gratitude by taking steps, to pass on to them, whatever is possessed by him. Therefore, it cannot be said that there existed any suspicious circumstance surrounding Ex.B2. Now, it needs to be seen as to whether the defendants have proved the execution thereof. The objection raised by the plaintiffs was that Ex.B2 contained the alleged right thumb impression of the executant and the same is not permissible in law. Extensive evidence was adduced in this behalf and the trial Court has also undertaken the discussion about it. D.W.2, a Registered Medical Practitioner, was examined by the defendants to prove that Yerra Reddy suffered an injury to his left thumb and the upper portion of it has suffered a deformity to such an extent that it could not be used to put the impression. He was subjected to elaborate cross-examination. It can be observed that the version of D.W.2 was not clear and certain and in a way, it was equivocal. He was subjected to elaborate cross-examination. It can be observed that the version of D.W.2 was not clear and certain and in a way, it was equivocal. The plaintiffs specifically pleaded, and in fact, suggested to all the defendant witnesses that though a small injury occurred to the left thumb of Yerra Reddy, it became perfect after treatment and there was no necessity for him to use the right thumb. The scribe, examined as D.W.6, and the attestors, examined as D.Ws. 3 to 5, did not throw any light upon this aspect. By the side of the thumb impression on Ex.B2, it was simply endorsed that it is the impression of a thumb. It was not even mentioned whether it is the thumb impression of the right hand or of the left hand. The defendants were also aware of the fact that a valid execution of a document by a male can be only by putting the impression of the left thumb and wherever any deviation is made, valid reasons must be assigned. The Andhra Pradesh Rules framed under the Registration Act become relevant in this context. Rules 63 and 64 of the Rules prescribe the procedure to be followed in the context of registration of documents and identification of parties. Though said Rules guide the factum of registration, the procedure followed therein becomes relevant even when an unregistered document is executed. Rule 63 mandates that the Registrar shall obtain impression of the thumb of the left hand of the executant. Rule 64 mandates that if for any reason it becomes impossible for the executant to put the impression of the left thumb, the impression of any other finger of the left hand must be put on the document, duly making endorsement to that effect. It is only when the left hand is totally amputated or if it otherwise becomes impossible to obtain the impression of any finger of that hand, that the impressions of right thumb can be taken. In the instant case, the defendants pleaded that the impression on Ex.B2 is of the right thumb of the executant. Even that was not endorsed on Ex.B2. This explanation is coming forth only in the written statement. In the instant case, the defendants pleaded that the impression on Ex.B2 is of the right thumb of the executant. Even that was not endorsed on Ex.B2. This explanation is coming forth only in the written statement. Added to that, it was elicited from D.W.6, the scribe, who is conversant with the procedure to be followed for execution of the documents; that no endorsement was made on the document when the right thumb impression is said to have been taken. Therefore, a clear infirmity or if not irregularity has crept into the execution of Ex.B2. Though the requirement under Section 63 of the Indian Succession Act is that a Will must be attested by two witnesses, Ex.B2 is said to have been attested by three witnesses i.e. D.Ws.3 to 5. A close scrutiny of the evidence of these witnesses discloses that there is any amount of inconsistency. D.W.3 stated that the plaintiffs were very much in the Village of Yerra Reddy when the execution has taken place. D.W.4, who is a young person of hardly 20 years, is said to have been brought from a far-off place only for the purpose of attestation. He admitted that he does not know the purport of the attestation nor did he figure as a witness or attestor on any earlier occasion. Even, his father is said to be not conversant with that procedure. It was also elicited that quite a large number of elders related to the family were very much available in the surroundings, at the time of alleged execution of the Will. Therefore, the very procurement of D.W.4 throws any amount of doubt as to the genuinity of the execution. These and other factors were taken into account by the trial Court and it was held that Ex.B2 cannot be said to have been executed as required under law. We agree with the finding of the trial Court as well as the view expressed by the learned Single Judge of this Court on this aspect. Therefore, we hold that the defendants failed to prove Ex.B2. The point is answered accordingly. Point No.2:With the finding on Point No.1, the preliminary decree passed by the trial Court virtually stands upheld. The dispute, however, is as to what are the properties that must be subjected to partition. On their part, the plaintiffs wanted all the six items in plaint ‘A’ schedule to be divided. The point is answered accordingly. Point No.2:With the finding on Point No.1, the preliminary decree passed by the trial Court virtually stands upheld. The dispute, however, is as to what are the properties that must be subjected to partition. On their part, the plaintiffs wanted all the six items in plaint ‘A’ schedule to be divided. The defendants contend that item No.6 should be excluded. That aspect would be covered in the discussion under Point No.3. The defendants insist that the property covered by Ex.A1 must be taken into account and treated as part of the share of the plaintiffs. It has already been mentioned that way back in the year 1952, Subba Reddy and Yerra Reddy executed Ex.A1 creating rights in respect of Ac.1.12 cents in the plaintiffs. Now, the plaintiffs want the properties of the joint family to be partitioned. If one takes into account, the date and recitals of Ex.A1; and the impact of the Hindu Succession Act thereon, a set of legal consequences ensues. A perusal of Ex.A1 clearly discloses that the property was passed on to the 1st plaintiff towards maintenance of not only herself, but also of the 2nd plaintiff, who was a child of tender age at that time. In other words, the 1st plaintiff was conferred with limited rights over the property under Ex.A1. With the coming into force of the Hindu Succession Act, such limited rights stand enlarged into absolute ones, under Section 14 (1) thereof. The 1st plaintiff, therefore, held the property as an absolute owner from 1952 till her death during the pendency of the suit. The 2nd plaintiff succeeded to the same on the death of her mother, the 1st plaintiff. Therefore, it is difficult to bring that property within the purview of partition. The matter, however, does not end here. By the time Ex.A1 was executed, the family of Subba Reddy and Yerra Reddy was joint. In fact, a specific mention of that was made in Ex.A1. It is the husband of a woman that would be under obligation to maintain her. Any person, who has inherited the property of a husband of a woman, can also be placed under obligation to maintain her. The joint family was not under such obligation, particularly when Yerra Reddy was very much alive. It is the husband of a woman that would be under obligation to maintain her. Any person, who has inherited the property of a husband of a woman, can also be placed under obligation to maintain her. The joint family was not under such obligation, particularly when Yerra Reddy was very much alive. Therefore, a notional and partial partition has to be assumed as on the date of execution of Ex.A1, whereunder the property covered by it was put to the share of Yerra Reddy. To that extent, his share in the rest of the joint family properties stands reduced. Viewed from this angle, it becomes necessary that while affecting partition of the plaint ‘A’ schedule properties, the extent covered by Ex.A1 must be put to the share of the plaintiffs. Hence, though the property covered by Ex.A1 is not available for partition, in the course of partition, the said item must be kept to the share of Yerra Reddy and thereby, the plaintiffs. The point is answered accordingly. Point No.3:The defendants strongly pleaded that Item No.6 of the plaint ‘A’ schedule was purchased by Subba Reddy with his exclusive funds under Ex.B5. It is not in dispute that during his life time, Subba Reddy was the Kartha of the joint family. The family remained joint till the suit was filed. It is not in dispute that the joint family possessed adequate assets, which was capable of yielding reasonable income. The property purchased under Ex.B5 is only one acre. Any family that is in possession of the suit schedule properties would certainly be in a position to acquire the properties of extents of one acre or above. Further, it was not demonstrated that Subba Reddy has any independent source of income or that he purchased the property with a clear intention to enjoy it exclusively by himself. Therefore, the plea of the defendants in this context cannot be accepted. For the foregoing reasons, the appeals are allowed in part upholding the preliminary decree in O.S.No.100 of 1983 on the file of Additional Subordinate Judge, Guntur, but directing that the property covered by Ex.A1 i.e. Ac.1.12 cents in D.No.99 of Annaparru Village, Prattipadu Taluq, Guntur District shall be treated as part of the share of the plaintiffs. The final decree shall stand modified to that extent. There shall be no order as to costs. The miscellaneous petitions filed in these L.P.As. The final decree shall stand modified to that extent. There shall be no order as to costs. The miscellaneous petitions filed in these L.P.As. shall also stand disposed of.