TMI Blog2005 (9) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... dule properties. Likewise, O.S. No. 82 of 1987 was filed by the appellants seeking a decree for perpetual injunction restraining the respondents from interfering with the plaint schedule properties. Against the dismissal of those two suits, the appellants filed C.M.A. No. 10 of 1988 on the file of the Additional District Judge who dismissed the appeal. The Principal Subordinate Judge, by her order dated 29.04.1997, passed in O.S. Nos. 7 of 1984 and 287 of 1984 decreed the suits. The other two suits filed by the appellants for injunction were dismissed with costs. The appellants filed four appeals before the High Court which were dismissed. The cross objections filed by the respondents were allowed in part. Aggrieved against the judgment in A.S. Nos. 720 of 1997 and 990 of 1997, the above appeals were filed in this Court. The facts and circumstances which led to the filing of the appeals and 4 suits may be noted in brief:- One Pentakota Srirammurthy who is the father of the appellants herein got married with the first respondent herein Pentakota Seetharatnam in the year 1952. The marital life with the first wife was not very happy. Srirammurthy started living with one Alla Kan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Srirammurthy in the hands of the appellants herein (Defendant Nos. 3-5). It was also stated that the second respondent Krishna Bhagavan is the adopted son of the plaintiff Seetharatnam and the first defendant Srirammurthy and the defendants and the plaintiff constituted members of Hindu Joint Family owning considerable properties mentioned in the A B schedule to the plaint. The second respondent Krishna Bhagavan filed O.S. NO. 7 of 1984 seeking a decree for partition and separate possession of his half share in the family properties claiming for the first time as the adopted son of Seetharatnam and Srirammurthy. Srirammurthy and Seetharatnam were impleaded as defendant Nos. 1 2 and the appellants were added as LRs of the deceased first defendant as per order dated 12.09.1989 in I.A. 808 of 1986. It was stated in the plaint that Krishna Bhagavan was born on 01.01.1963 and that Srirammurthy and Seetharatnam requested the natural parents of Krishna Bhagavan late P.Paramesu and his wife in the year 1966 to give Krishna Bhagavan in adoption to them. Paramesu and his wife consented to the same and Krishna Bhagavan was given in adoption to Srirammurthy and Seetharatnam by his natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the plaintiffs, PWs 1-6 were examined and on behalf of the defendants DWs 1-8 were examined. As already noted, Special Leave Petition Nos. 21835 and 21836 of 2003 were filed against the judgment and decree in A.S. Nos. 720 of 1997 and 990 of 1997. We heard Mr. K.V.Viswanathan, learned counsel for the appellants and Mr. P.S. Narsimha, learned counsel for the respondents. Both the learned counsel invited our attention to the entire pleadings; evidence let in, both oral and documentary and made their meticulous submissions at length in support of their respective contentions. Mr. K.V. Viswanathan, learned counsel for the appellants, after stating the background facts of the case, submitted that the impugned judgment and the order of the High Court is unjust and against law, weight of evidence and probabilities of the case. He submitted that the High Court and the Courts below cannot overlook Ex. B9 a registered Will when they have recorded a finding that the Will is proved as incompliance with the requirement of Section 68 of the Evidence Act, 1872 though there is no material on record to show that the Will was executed in suspicious circumstances to the satisfaction of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Consolidation and Others reported in (1978) 3 SCC 527; S.P.S Balasubramanyam vs. Suruttayan alias Andali Padayachi and Others reported in (1994) 1 SCC 460, Sobha Hymavathi Devi vs. Setti Gangadhara Swamy and Others reported in (2005) 2 SCC 244. He also cited various decisions to the effect that there is no absolute bar for interference on concurrent findings. Mr. P.S. Narsimha elaborately argued in support of his contentions and with reference to the pleadings, documents and evidence let in. He submitted that though the appellants filed appeals against all the suits and all the appeals were dismissed, the appellants herein filed special leave petitions before this Court only against the suits filed by the respondents which was upheld by the High Court and no special leave petitions are filed against the dismissal of the suits filed by the appellants which were upheld by the High Court, therefore, the decrees in suits filed by the appellants have become final. According to him, the suits filed by the appellants are based on the alleged right arising out of the Will executed by Pentakota Srirammurthy and that the trial Court as well as the High Court disbelieved the Will an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook place 30 years ago officiated by one Kondal Rao as Purohit and that D2 was handed over by his natural parents to herself and D1 and mantras were also recited by the said Purohit during the adoption ceremony. The Headmaster of the school PW3 where D2-D5 studied deposed that the Photostat copy of the admission application form pertains to D2 which also shows the name of D1 as the father of D2 and that D1 signed in the originals of the said document in the capacity of the father D2. A Telugu Pandit of the said school also deposed that the copy of the admission application form in respect of D2 and Ex.X-12 showed D1 as the father of D2. Apart from the above-mentioned witnesses, two independent witnesses were also examined and both these witnesses deposed that the adoption took place 30 years back and were attended by other people including the relation of D1 and the plaintiff. DW2 and DW3 further deposed that adoption ceremony was officiated by Kondal Rao as Purohit and the natural parents of D2 handed over D2 to D1 and the plaintiff along with the coconut who in turn accepted the same. Thus Mr. Narsimha submitted that on a perusal of the above evidence of all the said witnesses, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd there is absolutely no commonality in the statement of these witnesses and the contradiction is material and goes to the route of the matter. Mr. K.V. Viswanathan, learned counsel for the appellants made lengthy submissions by way of reply with reference to each and every contention and submissions made by learned counsel for the respondents. We shall advert to the same at the appropriate stage. In the background facts and circumstances, the following questions of law arise for consideration by us:- 1. Whether the second defendant Krishna Bhagavan is the adopted son of the first defendant Srirammurthy; 2. Whether Ex.B9 Will is valid and whether it is proved in compliance with the requirement of Section 68 of the Evidence Act; 3. Whether the Courts below have justified in decreeing the suits in favour of the respondents herein and dismissing the appeals filed by the appellants herein merely basing on surmises and conjectures and wrong application of law? We have carefully perused the complaint in O.S. No. 7 of 1984 and O.S. No. 287 of 1984 and the written statement filed by the respective defendants. We have also carefully perused the Will marked as Ex.B9 and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court framed necessary issues in regard to the validity of the registered Will, validity of the adoption and whether Krishna Bhagavan was entitled to any share in the suit property and to what extent. The appellants also filed written statement broadly on the same lines as signed by their father Srirammurthy. The suit filed by Seetharatnam in O.S. No. 287 of 1984 was treated as main suit. Before the trial Court, 6 witnesses were examined on the side of the respondents and 8 witnesses were examined on the side of the appellants. P. Seetharatnam examined herself as PW1, Krishna Bhagavan examined himself as DW1. P. Satyanarayana, Manka Anandarao (attestor of the Will) and Kamisetti Saibaba, the scribe of the Will were examined on the side of the appellants. With regard to the adoption of Krishna Bhagavan apart from PW1, PW3, PW6, DW2,DW3 spoke through their evidence, their depositions would be referred to at the appropriate place. If the Will is held to be proved and the adoption is held to be not proved, then irrespective of the paternity the appellant should succeed since they are legatees under the will. Hence, the crucial question that arises in this case is the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Will has been duly proved and the High Court and the lower Court in their discussion has even held so. It has also been held that the testator was hale and healthy and in a sound state of mind. The Will is a registered Will. DW5, the attestor and DW6, the scribe have been examined to prove the Will. As already noticed, the Will gives property to respondent No.1 Seetharatnam, the first wife of the testator and the remaining properties to the appellants, who according to the testator, were his children and the children through his second wife A. Kantamma. We have already referred to the written statement filed by Srirammurthy in the suit. The statement made by him in the written statement is one of the most important factors which authenticates the genuineness of the Will. No evidence has been led in by the respondents to show the exercise of any fraud or undue influence at the time of execution of the Will. No evidence was adduced to show that the testator is not in sound state of mind and in fact, the finding is that he was of sound mind. In our opinion, the evidence adduced by the appellants/profounders are sufficient to satisfy the conscience of the Court of law that the Will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 sign 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 same time, and no particular form of attestation shall be necessary. It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses singed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law. A perusal of Ex.B9 (in original) would show that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321. We have already referred to the findings of the High Court and the trial Court about the alleged suspicious circumstances which, in our opinion, are palpably erroneous. In fact, the circumstances are not suspicious at all. As far as the High Court is concerned, it has only gone by the exclusion of Krishna Bhagavan in the Will and the bequethal of major portion to the appellant. This is legally no ground to negate the Will. Further, once the Will is duly proved, the Will has to be given effect to. In this case, admittedly and even according to PW1 the testator Srirammurthy and Alla Kantamma were living together as man and wife. Therefore, there is nothing wrong if the will refers to Alla Kantamma as wife of the testator. Similarly, the testator has referred to the appellants as his children in the Will. The very same stand has been maintained in the written statement filed by Srirammurthy. There is ample evidence to prove that Srirammurthy has treated the appellants as his children and solemnized their marriages. DW-4's evidence prove this factor. It is everybody's case that the testator and Alla Kan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribe the same. This is nowhere contradicted by DW5. DW5 does not say that D1 (testator) did not bring a draft Will. It is quite natural for the testator to have a first draft Will in the pocket when he goes to a document writer. DW5 was asked to attest. DW6 also speaks about the execution and attestation. The trial Court has made much about the draft Will aspect. This is hardly a suspicious circumstance. DW6 says that 4 male persons accompanied D1. This is hardly a suspicious circumstance. DW5 also states that there was another person whom he would not identify. The deposition was given in 1997 (i.e. 17 years after the registration of Will) and the courts below ought not to have made a mountain out of a molehill and on that basis reject a duly executed registered Will. Coming to the evidence of DW4 (Appellant No.1) his evidence is that testator alone went to execute the Will. He also states that he also went there and he does not know whether his mother and brother accompanied him. He says that he has not seen the writing of the Will and he was not present at the time of registration. He also says that he did not go to the place where the document was scribed. Applying the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Alla Kanakaiah was the father of D3. He further deposed that he gave such information as D1 was fearing that he would lose his job. He also deposed about the marriage performed by D1 and Kantamma. In cross-examination, he stated that Alla Kanakaiah is the first husband of Kantamma and that D7. He also spoke about the caste divorce between Kanakaiah and Kantamma. Ex.B8 voters list has shown the appellant as children of the testator D1. DW4 has said only because testator D1 was having a government job as Village Munsiff. He did not disclose in the official record that the appellants are his children. In this background, there is nothing wrong if the testator describes the appellants as his children particularly when the same stand is taken in his written statement also. In our opinion, Ex. A5-A9 and X series cannot at all be looked into for any purpose and that the same would have been procured by the respondents to put forth their case. The Will is held to be proved and adoption is held to be not proved. The appellants should succeed since they are the legatees under the Will. We also hold that P. Seetharatnam is also entitled to the properties given to her under Ex.B9. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra; in Diwakar Rao v. Chandanlal Rao; in Kishorilal v. Chunilal; in Lal Kumar v. Charanji Lal and in Padamla v. Fakira Debya. No argument was advanced on the question of paternity. We are not, therefore, dealing with the said question. Admittedly, Srirammurthy was living with Alla Kantamma since 1954. The alleged adoption is in 1966. It is quite unbelievable that a person who is estranged from his wife and according to him 3 children were born to him and Alla Kantamma in the years 05.01.1956, 03.11.1958 and 17.12.1960 joining with Seetharatnam. The pleading itself shows the hatred they had for each other due to Kantamma coming into the picture. No date of adoption is given nor venue of the ceremony was given in the plaint. No specific custom is pleaded and it is not even pleaded that giving of coconut is part of the ceremony. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Srirammurthy has deposed and described Krishna Bhagavan as his brother's son. When this was put to the Krishna Bhagavan in cross-examination he only pleaded ignorance. In the above suit, Sitaratnam filed an application seeking for discharging the Court guardian and for appointing her as guardian for Krishna Bhagavan. In the affidavit in support of the application, she did not describe Krishna Bhagavan as her adopted son. This was in the year 1982. When this was put in cross to Seetharatnam, she did not deny but pleaded ignorance. Sriramamurthy declared his properties in LCC 428/Tuni/75. In that proceeding, Sriramamurthy deposed as witnesses and described Krishna Bhagavan as his brother's son. Krishna Bhagavan's name was shown as part of the family of Paramesu in their land ceiling declarations. PW3 has deposed to the effect that Ex.X 3 is the photocopy of the admission application pertaining to Krishna Bhagavan. Sriramamurthy himself signed in the place meant for Father or guardian. Hence, it cannot be contended that this a proof of adoption. It was a printed column for father or guardian. He could have meant to be a guardian as he did for all his elder broth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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