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2014 DIGILAW 684 (AP)

Amar Singh died v. Vidya Sagar

2014-06-06

M.S.K.JAISWAL

body2014
Judgment : 1. This appeal is directed against the Judgment and decree dt. 27.02.1990 in O.S.No.176 of 1985 on the file of Additional Chief Judge, City Civil Court, Hyderabad, by and under which the suit for issue of probate in favour of the plaintiff-Vidya Sagar, declaring that he is entitled to the properties according to the Will Deed executed by his grandfather-Gajadhar, was decreed. 2. On 07.12.1983 the plaintiff filed O.P.No.26 of 1984 on the file of the Chief Judge, City Civil Court, Hyderabad for grant of probate. Subsequently, the said original petition was converted into Original Suit and was made over to the trial Court. The suit property comprises of a House bearing No.14-10-595, situated at lower Dhoolpet, Hyderabad. The appellants 1 to 3 were Defendant No.1, Defendant No.2 and Defendant No.4 in the suit. The 1st respondent herein filed the suit against three appellants and also Respondents 2 and 3 herein. 3. During the pendency of the appeal, the 3rd appellant – Smt. Rani Bai (D.4) died and her legal representatives are impleaded as Respondents 7 to 15. Similarly, the 2nd respondent/Defendant No.2 – Ramakrishna Singh also died and his Legal Representatives are impleaded as Respondents 4 to 6. For the purpose of convenience, the parties shall be referred to as they are arrayed in the main suit. 4. The case of the plaintiff, in brief, is that he is the grandson of Gajadhar, whereas Defendant No.1 to Defendant No.3 are sons, and Defendant No.4 and 5 are the daughters of Gajadhar. Out of love and affection Gajadhar executed a Will on 01.05.1967 bequeathing all his movable and immovable properties, and that the said Will was attested and registered, and as such the plaintiff is entitled to the suit schedule property. It is further contended that at the time of execution of the Will, the plaintiff was a minor and as such his father Atmaram was the executor of the Will. Gajadhar died on 24.10.1968 and Atmaram died on 5.5.1971. It is also alleged that thereafter, Defendant Nos.1 to 3, the other sons of Gajadhar, drove away the plaintiff, his mother, brothers and sisters from the suit house and they started living in a rented premises. After the plaintiff became major, he tried for settlement as per the Will, but his attempts proved futile, and hence prayed to issue a probate in favour of the plaintiff. 5. After the plaintiff became major, he tried for settlement as per the Will, but his attempts proved futile, and hence prayed to issue a probate in favour of the plaintiff. 5. The claim of the plaintiff was resisted by Defendant No.1, Defendant No.3 and Defendant No.4 contending that Gajadhar was sufficiently old and was not in a position to execute any Will. The relationship is admitted. It is alleged that taking advantage of the old age of Gajadhar, the father of the plaintiff-Atmaram created and fabricated the Will in question. No reasons have been attributed in the Will to deprive the other heirs of the executant of the Will. The fact that the cover containing the Will was deposited in the Registration Office and was opened without knowledge of the other dependents, proves the intention of Atmaram. It is contended that in the suit house, Defendant No.3-Balram Singh, his family, father Gajadhar and mother were living. It is further contended that the mother of the plaintiff obtained a vacant site for running firewood business and erected a shed in Khemdas Mutt and the family of the plaintiff shifted there. One year prior to the death, Gajadhar was taken to that premises and the Will was created. Therefore, the settlement was not possible, that there is no cause of action, and the suit is liable to be dismissed. 6. Another son – Ram Krishna Singh (Defendant No.2) and daughter-Kalavati Bai (Defendant No.5) of Gajadhar admitted the claim of the plaintiff. 7. On the basis of the above pleadings, the trial Court framed the following issues and additional issues:- 1) Whether the plaintiff is entitled for grant of probate of Will dt. 1.5.67 executed by Gajadhar? 2) Whether the Will dt. 1.5.67 is true, valid, and binding? 3) To what relief? 8. On behalf of the plaintiff, PWs.1 to 5 were examined, and Exs.A.1 to A.14 were marked. On behalf of the defendants DWs.1 to 4 were examined, but no documents were marked. After hearing the arguments of both sides and perusing the material on record, the trial Court decreed the suit. 9. 3) To what relief? 8. On behalf of the plaintiff, PWs.1 to 5 were examined, and Exs.A.1 to A.14 were marked. On behalf of the defendants DWs.1 to 4 were examined, but no documents were marked. After hearing the arguments of both sides and perusing the material on record, the trial Court decreed the suit. 9. The contesting defendants preferred the appeal contending that - the Judgment and decree under appeal are contrary to law, the trial Court failed to appreciate the facts and material on record properly and came to erroneous conclusions, that the evidence of the attesting witnesses – PWs.2 & 3 is contradictory and the same ought not have been relied upon, that no reasons are mentioned for propounding the Will at a belated stage and no valid grounds were shown for excluding the other legal heirs of the executant, the disputed signature on the Will Deed was not compared with the admitted signatures of the executant; the authenticity of the Will is seriously questioned, and the plaintiff failed to discharge his burden and therefore the Judgment and Decree are liable to be set aside. 10. The point for consideration is as to whether the will – Exs.A.5 and A.6 are proved so as to sustain the order of probate or it is liable to be set aside? 11. As already stated, originally by invoking the provisions of Sec.276 of the Succession Act, the plaintiff filed O.P.No.26 of 1984. After the respondents made their appearance and filed their counters, on 05.12.1985 the O.P., was converted into suit and was registered as O.S.No.176 of 1985, and thereafter the trial was taken up. 12. Gajadhar was an Ex-Serviceman and a person drawing pension. He died on 24.10.1968, as is evident from Ex.A-1 death certificate. He had four sons and two daughters, namely, Atmaram (father of the plaintiff), Amar Singh (Defendant No.1), Ram Kishan Singh (Defendant No.2), Bal Ram Singh (Defendant No.3), Smt. Rani Bai (Defendant No.4) and Kalavati Bai (Defendant No.5). He was the owner and possessor of the suit schedule house. More than a year prior to his death, Gajadhar executed the Will Deed, Ex.A-5, and on the same day, with his own hand Gajadhar executed another Will, Ex.A.6 in Urdu. A plan of the suit schedule house-Ex.A.7, was attached to the Will. Exs.A-5, A-6 along with Ex.A-7 were deposited with the Registration Office for safe custody. More than a year prior to his death, Gajadhar executed the Will Deed, Ex.A-5, and on the same day, with his own hand Gajadhar executed another Will, Ex.A.6 in Urdu. A plan of the suit schedule house-Ex.A.7, was attached to the Will. Exs.A-5, A-6 along with Ex.A-7 were deposited with the Registration Office for safe custody. The suit house was bequeathed in favour of the plaintiff, who, at that time, was aged about five years. As per the said Will, the suit house has been bequeathed in favour of the plaintiff to the exclusion of all the sons, daughters and wife of Gajadhar. The father of the plaintiff Atmaram died on 05.05.1971, as is evident from Ex.A-2. At that time, the plaintiff was aged about 8 years. It is the case of the plaintiff that after he became major, he came to know about the execution of the Will and thereafter obtained the certified copies from the Registration Office. The cover deposited by the Gajadhar was opened and the Wills were handed over to him. Both the Wills – one in English and the other in Urdu written by the testator, were attested by two attesting witnesses, who have been examined as PWs.2 and 3. 13. The suit is filed to grant probate in respect of the said Will. It is resisted by two sons and one daughter of Gajadhar contending that the father of the plaintiff Atmaram has took the executant Gajadhar to his house about a year prior to his death and thereafter created Exs.A5 and A.6 to the exclusion of the other legal heirs of Gajadhar. Another son and a daughter of Gajadhar sailed with the plaintiff, supporting the execution of the Will and the bequest being made in favour of the plaintiff. It is manifest that the sons and daughters of Gajadhar are equally divided on the material aspects. 14. Will is a testamentary disposition of the person, who is not available for testifying about its authenticity. As per the provisions of Sec.63 of the Evidence Act, it is mandatory that a Will is required to be executed in the presence of and attested by witnesses, who should sign in the presence of the executant, after seeing that the executant put his mark or signature thereon. The suspicious circumstances, if any surrounding the execution of the Will have to be dispelled by the propounder. The suspicious circumstances, if any surrounding the execution of the Will have to be dispelled by the propounder. Exclusion of the other legal heirs of the testator is one of the grounds which create the suspicion, but that by itself cannot be taken as a ground to disbelieve the execution of the Will. The totality of the facts and circumstances and the surrounding circumstances in which the Will came to be executed, the role played by the legatee, the custody of the will etc. are the circumstances, which are to be borne in mind. In the instant case, it is admitted by the defendants that Gajadhar was an Ex-Serviceman and was drawing pension. He was aged about 80 years, when he died in 1968. It is also admitted that more than a year prior to his death, Gajadhar went to the house of Atmaram, the father of the plaintiff and was living there. It is also the contention of the defendants that about two months prior to his death, Gajadhar sustained a fracture and was hospitalised and died subsequently. Originally, Gajadhar was living in the suit house along with his wife and other sons, and whereas the father of the plaintiff was staying separately. The defendants admit that Gajadhar voluntarily went to the house of Atmaram, more than a year prior to his death. What was the circumstance under which Gajadhar was compelled to leave the suit schedule house and the family members, and live with his elder son Atmaram is not spoken to by the defendants. Unfortunately, Atmaram also died within three years after the death of Gajadhar. At that time, the plaintiff was aged about 8 years. Therefore, it can safely presume that the defendants, who are the other sons and daughters of Gajadhar, have created an atmosphere, which compelled him to leave them and also the suit house and start living with Atmaram, in a rented premises. 15. The plaintiff is examined as PW-1. He deposed about the facts, which are mentioned in the petition/plaint. In order to prove the genuineness of the Will, the plaintiff examined the two attestors as PWs.2 and 3. Ex.A-5 and Ex.A6 are the two Wills executed by Gajadhar – one in English and the other in Urdu, which is a holographic Will. The contents of both the Wills are one and same. In order to prove the genuineness of the Will, the plaintiff examined the two attestors as PWs.2 and 3. Ex.A-5 and Ex.A6 are the two Wills executed by Gajadhar – one in English and the other in Urdu, which is a holographic Will. The contents of both the Wills are one and same. The two attestors, PWs.2 and 3 are the friends of Atmaram. The defendant in his evidence admits that these two persons were frequently visiting the house of Atmaram and Gajadhar. Both Pws.2 and 3 have consistently deposed that in their presence Gajadhar executed the wills and put his signature in Urdu. Even though they are elaborately cross-examined, nothing concrete is elicited from them for disbelieving their evidence. It is also in their evidence after execution of the Wills, they were kept in a sealed cover and handed over in the Registration office. Both the witnesses also speak about the physical and mental condition of the testator at that time. It is evident from their testimony that even though Gajadhar may be physically fragile, but he did not suffer with any major ailment which has affected his mental equilibrium. The learned trial Judge, who has recorded the evidence of PWs.2 and 3 had the opportunity of observing the demeanour, accepted the testimony to be truthful. Upon carefully going through their evidence, I have no hesitation to hold that their evidence is truthful and cogent. 16. With regard to the custody of the Will, as already stated it was deposited with the Registration office in a sealed cover. To speak on this aspect, PW.4 has been examined, who is a Temporary Section Writer in the District Registrar Office, Hyderabad. He produced Book-III, Volume-38, which pertains to the Wills. He deposed that the Will Deeds Exs.A.5 and A.6 are deposited in the Registration office, and after opening the cover, a copy of it was made in the register and thereafter the originals were returned. He further deposed that the contents of Exs.A.5 and A.6 were incorporated at Pages 4 to 6 of the Register maintained by the Department. He further deposed that the Testator shall give the Will in a sealed cover and the same will be opened only after the proof of death of the testator. The evidence of this witness was not challenged. Similarly, pw-5 is Senior Auditor in the Defence Pension Disbursing Office, Hyderabad. He further deposed that the Testator shall give the Will in a sealed cover and the same will be opened only after the proof of death of the testator. The evidence of this witness was not challenged. Similarly, pw-5 is Senior Auditor in the Defence Pension Disbursing Office, Hyderabad. He has produced Ex.A-9, which is the pension certificate bearing no. IAFA.373 of Gajadhar . He further deposed that Ex.A.10 is the letter of Gajadhar, dt. 20.02.1967 which bears his signature. Ex.A.11 has been produced by him, which contains the finger prints of Gajadhar, which was duly attested by the Pension Payment Officer. He also produced Ex.A.12, which is the application of Gajadhar requesting to send his pension by Money Order. Ex.A.13 is a crucial document, which has been produced by PW-5. It shows the intention of Gajadhar. In Ex.A.13, Gajadhar has nominated his son Atmaram to receive the benefits after his death. It clearly shows that not only the suit house, but even his benefits arising out of his service in the Defence were to be given to his son Atmaram, father of the plaintiff to the exclusion of his other sons and daughters. 17. The evidence of DW.1 who is the 2nd defendant in the suit supports the case of the plaintiff. He clearly deposed that his father-Gajadhar died in 1968, who was an illiterate person, knowing Urdu. After the death of Gajadhar, he came to know about the Will being executed by Gajadhar in respect of the suit house, bequeathing the same in favour of the plaintiff and that after the death of Gajadhar, the plaintiff was forced to vacate the suit house. 18. The contesting Defendant No.1 is examined as DW.2. He deposed that at the time of death, Gajadhar was aged about 85 years and that before his death his father Gajadhar was unable to hear and was shaking. He admits that he came to know about the Will executed by Gajadhar, after the death of his father. He denies that Exs.A5 and A.6 contains the signature of his father, but no steps whatsoever were taken by him to get the disputed signatures compared with the admitted signatures of his father Gajadhar. It is further in the evidence of DW.2 that his father informed him that the plaintiff was insisting to execute a Will, which he was not willing to do. It is further in the evidence of DW.2 that his father informed him that the plaintiff was insisting to execute a Will, which he was not willing to do. However, in the cross-examination DW.2 admits that his father was personally visiting the Pension Payment Office to receive his pension till his death. He also admits that his father was able to read and write Urdu. He also admits that about two months prior to his death, his father Gajadhar sustained a fracture injury and was admitted in Osmania General Hospital, Hyderabad, where he died. He also admits that PWs.2 and 3 were visiting their house during the life time of their father. From the evidence of DW.2, the facts which emerge are that as on 01.05.1967 when the Will was said to have been executed, the executant Gajadhar was perfectly alright and was in a mentally fit condition. 19. Similar is the evidence of DW-3, who is the 3rd defendant in the suit. He also denies the signature on Exs.A5 and A.6 as that of his father. He claims to have received some letters from his father, but he has not produced the same. Contrary to the statement of DW.2, D.W.3 deposed that for about 5 or 6 years prior to his death, his father was not going to the Pension Payment Office for collecting the pension, as he was not keeping well. DW.3 admits that about two years prior to his death, his father started living with his elder brother Atmaram. He also stated that his father Gajadhar voluntarily went to the house of Atmaram. DW.4 is examined to speak about the fact that Defendant No.3 and Defendant No.2 are staying as tenants in Khemdas Mutt. 20. The Plaintiff by examining PWs. 2 and 3, the attestors and also PW.4 an Officer of the Registration Department, has established that the testator-Gajadhar has executed Exs.A.5 and A.6, Will Deeds in a sound and disposing state of mine. Even though the reasons for exclusion of the other heirs of Gajadhar are not mentioned, but the evidence on record clearly shows that there were certain circumstances which have compelled Gajadhar to exclude the other heirs. Even though the reasons for exclusion of the other heirs of Gajadhar are not mentioned, but the evidence on record clearly shows that there were certain circumstances which have compelled Gajadhar to exclude the other heirs. The fact that at the age of about 80 years, Gajadhar voluntarily left the suit house, where his family members are living and started living with his elder son, father of the plaintiff, goes to show that there are valid reasons for Gajadhar to bequeath the suit house in favour of the son of his elder son Atmaram, with whom he was living to the exclusion of the others. The will has been produced from proper custody and nothing is brought on record to suspect its execution. The trial Court has appreciated all the aspects on record in proper perspective and for valid reasons held that the Plaintiff is entitled to the decree as prayed for. Upon re-appraisal of the evidence on record, I see no reason to interfere with the said findings of the trial Court, which are based on legal and acceptable evidence. There are no merits in the appeal and the same is liable to be dismissed. 21. CCCA MP.No.567 of 2013 is filed by the appellants to receive certified copy of Judgment and Decree in O.S.No.1325 of 2001, dt. 07.07.2008; Order copy in CCCA MP.No.13 of 2009 in CCCA No.8 of 2009, dt. 09.09.2009 and the copy of Index, grounds of appeal in CCCA No.8 of 2009, and Affidavit in CCCA MP No.13 of 2009 in CCCA No.8 of 2009 in CCCA No.18 of 1991, as additional evidence in the appeal. It is contended that basing upon the Judgment and Decree under appeal, the Plaintiff filed O.S.No.1325 of 2001, which was dismissed by the trial Court on 07.07.2008, and against that CCCA No.8 of 2009 is pending in this Court. Therefore, the documents are sought to be filed in the present appeal. 22. I have carefully perused the material that is already filed on record and also the documents that are sought to be filed now. So far as the controversy in the present appeal is concerned, the proposed documents have no relevance. Though the suit and the appeal are in between the same parties and in respect of the same property, no valid grounds are made out to admit the present documents in appeal by way of additional evidence. So far as the controversy in the present appeal is concerned, the proposed documents have no relevance. Though the suit and the appeal are in between the same parties and in respect of the same property, no valid grounds are made out to admit the present documents in appeal by way of additional evidence. Hence, the petition i.e., CCCA MP No.567 of 2013 is dismissed. 23. In the result, the CCCA and the CCCAMP are dismissed. The other miscellaneous petitions, if any pending, shall stand disposed of accordingly. No costs.