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TMI Blog2002 (11) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... il Court, Secunderabad, against his brothers, mother and sister seeking partition of plaint-A, B and C-schedule properties into 72 parts, and to allot 10 such parts to him. The same was transferred to the Court of Additional Chief Judge, City Civil Court, Secunderabad and re-numbered as O.S. No. 29 of 1983. His brothers, Yadagiri, Narsimhulu, Lakskmi Narsimhulu, Ayodhya Ramulu, Koteswar Rao and Srisailam are arrayed as defendants 1 to 6, his mother as seventh defendant and his sister as eighth defendant. The fifth defendant in O.S. No. 29 of 1983 Veesamsetti Koteswara Rao filed separate suit being O.S. No. 262 of 1980 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad praying for partition of same properties and for allotment of 10/72th share in his favour. The said suit was also transferred to the Court of Additional Chief Judge, City Civil Court, Secunderabad and was renumbered as O.S. No. 37 of 1983. The sixth defendant in O.S. No. 29 of 1983 Veesamsetti Srisailam filed two suits being O.S. Nos. 1101 and 1100 of 1979 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad. These were transferred to the Court of Additional Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erabad with the help of joint family assets and funds. He built up good reputation and prospered in the business. He put his sons in business and expanded the business operations. He established four shops at General Bazar, Secunderabad and two shops at Malkajgiri. He also put the plaintiff in charge of M/s. Anantha Lakshmi Hardware and Paints Stores. Defendants 1 to 5 are in-charge of shops at Malkajgiri. Defendants 2 and 3 were looking after the branch of M/s. Veesamsetti Buggaiah at General Bazar. The sixth defendant was made to prosecute higher studies to satisfy Buggaiah's longing wish to have a Doctor in his family. 7. All the business firms were run with the monies invested by Buggaiah as Karta and Manager of the joint family. He was supervising the business of all the firms. He had complete control over the investments and transactions entered into. All the sale proceedings were used to be handed over to him. Late Buggaiah purchased properties in his name or in the name of one of the sons by debiting the amounts in whichever concern there were surplus funds. Buggaiah was like a Godfather and no son could dare to question him. But, he was affectionate father and wished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly properties as Buggaiah had only 1/8th share and he had no right to deal with any properties and assets as his own or bequeath anything more than his undivided 1/8th share. 10. There was exchange of notices prior to filing of the suit. The plaint also refers to these notices dated 1.4.1979 and 29.5.1979 issued by the plaintiff. The plaintiff further states that after exchange of notices, the defendants tried for settlement by negotiations which did not, however, materialise in spite of his efforts during this period. He filed a suit for partition of his 10/72th share or in the alternative for his 1/8th share in the estate of joint family, for delivery of separate possession of his share, for rendition of accounts of the profits earned after the notice dated 1-4-1979 and for future mesne profits. Defence on the Opposite Parties 11. Defendants 1 to 4 filed a common written statement. Fifth defendant filed a separate written statement supporting the case of the plaintiff that the entire suit schedule properties are joint family properties except Item No. 5 of A-schedule which fifth defendant claimed to have purchased from out of the sale proceeds of jewellery of his wife. Defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led insolvency petition being I.P. No. 189 of 1975 on the file of the Court of Additional Judge, Small Causes Court, Hyderabad in his individual capacity. The Will set up by sixth defendant is false document. It is intended to deprive defendants 1 to 4 of their right in father's properties. The Will is not last Will and therefore not enforceable. None of the properties in the plaint-'A', 'B' and 'C' schedules are joint family properties and the question of division does not arise. Late Buggaiah executed a Will dated 5-6-1978 making dispossession of his share in the business and properties. The plaintiff is not entitled to 1/8th share or 10/72th share in the said properties and share in the properties held by Buggaiah as per Will dated 5-6-1978. Defendants 1 to 4 also denied all other allegations made by the plaintiff specifically. 14. As noticed earlier, the fifth defendant filed separate written statement virtually agreeing with the case of the plaintiff except insofar as Item No. 5 of plaint-A schedule properties is concerned. 15. Sixth defendant filed a separate written statement denying the right of the plaintiff to claim partition of plaint A, B a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sons who joined the business, became partners and not members of the joint family. The earnings of the partnership business were treated as their own earnings which were utilised for investment in properties and development of business of partners. Plaint A and B-schedule properties are not joint family properties. Except Item No. 3 (Motorcar) in C-schedule, all other Items mentioned in plaint C-schedule are non-existing. Late Buggaiah executed a registered Will dated 15-2-1977 under which he bequeathed his property to sixth defendant. It was executed in a sound and disposing state of mind voluntarily and with free will. The Will dated 5-6-1978 set up by defendants 1 to 4 is false and not binding. 17. As noticed, seventh defendant is the mother of the plaintiff and defendants 1 to 6 and 8. She expired on 22-7-1990 during the pendency of the suit. She was also examined as D.W.1. In her written statement, she stated that Buggaiah migrated to Secunderabad for eking out his livelihood as he did not prosper in Agapalli. He did not bring any property or assets from his village. Business at Secunderabad was started with self-acquired money. All his sons except the younger son, Srisaila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for trial are the following. (1) Whether the suit is liable to be stayed under Section 10 of the C.P.C. in view of the pendency of O.S. No. 1164 of 1979 in this Court? (2) Whether the plaintiff is entitled to partition of the plaint schedule properties, rendition of accounts and for mesne profits as prayed for by him? (3) Whether the Court fee paid is correct? (4) To what relief? Pleadings in OS No. 73 of 1983 19. The suit was filed by V. Srisailam, defendant No. 6, based on the registered Will executed by late Buggaiah in his favour. He filed the suit for accounts of the property and assets belonging to the firm M/s. Veesamsetti Buggaiah and for winding up of the same and for direction for payment of his share in the net assets of the suit partnership firm including house property shown as Item 7 of plaint A-schedule. Defendants 1 to 4 filed a common written statement opposing the suit on the grounds stated in their written statement in the main suit. On the pleadings, the Trial Court set down the following issues for trial. (1) Whether the Will dated 15-2-1977 is valid and binding on the defendants? (2) If so, whether the Will dated 5-6-1978 said to be executed by V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Smt. Anantha Lakshmi, who is seventh defendant in O.S. No.29 of 1983 was examined as D.W.1 out of turn due to her age and ill-health. The legal battle between Krishna Murthy and Koteswara Rao on one side and other sons of late Buggaiah, his wife and daughter on the other side was fought leaving nothing to chance. As a result, relevant and irrelevant evidence has come on to the record. 22. The plaintiff examined himself as PW1, He also examined P.W.2 who was writing the accounts of late Buggaiah relating to a shop since 1963. The brother-in-law of PW1 was examined as PW4 and Hanumantha Rao who is alleged to have visited Buggaiah on his deathbed was examined as P.W.3. Plaintiffs also marked Exs.A1 to A44 besides marking various entries in some of the related books for a pointed reference to the Court. Ex.A.6 to A.26 are account books of Anantha Lakshmi Hardware Stores and Exs.A.27 to A.32 are Employees' Attendance Registers. 23. On their part, the defendants also brought in huge evidence. The wife of Buggaiah (D.7) was examined as D.W.1. Defendants 4 and 5 examined themselves as D.Ws.3 and 2 respectively. Sixth defendant who is also the plaintiff in O.S. Nos. 73 and 468 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant was disbelieved and held not binding on the plaintiff and other defendants. Summary of the submissions made by the Appellants 26. The lead arguments were made by Sri C. Balagopal, learned Counsel for the appellant - sixth defendant, which were supplemented by Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8. The lead arguments on behalf of the plaintiff Krishna Murthy and the fifth defendant Koteswara Rao were made by Sri T. Venugopal Reddy, learned Counsel for the fifth defendant, which were supplemented by Sri Chandrasekhar, learned Counsel for the plaintiff Krishna Murthy, The matter was heard from 21-8-2002 to 18-9-2002; on seventeen days. 27. Learned Counsel for the sixth defendant, Sri C. Balagopal submits that Buggaiah and his sons were living together in Pan Bazar House. That itself would not lead to a presumption that the properties and businesses in Schedules A and B respectively were joint family properties. He submits that there is no proof that Buggaiah brought any funds from Agapalli Village. He came searching for better prospects and he did not bring any joint family nucleus to start the business at Secunderabad. Placing reliance on the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same is vitiated by fraud and coercion on the ground that the same was executed by Buggaiah under dominating influence of sixth defendant and by exercising undue influence and, therefore, the plaintiffs cannot be permitted to raise all sorts of objections which are not raised in pleadings. 29. Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8 submits that the plaintiff has not founded his case either on the theory of joint family nucleus, the theory of blending or the theory of descendency. He submits that the plaintiff has founded his case on vague theory. He failed to prove that there was joint family nucleus with which Buggaiah started business. He also failed even to plead and prove that when Buggaiah migrated to Secunderabad, he carried money by way of savings out of the alleged joint family business at Agapalli for the development of joint family business at Secunderabad and blended the ancestral joint family properties with the business at Secunderabad. The plaintiff did not plead or prove that the joint family business is traceable to late Srisailam (senior), father of Buaggiah. 30. While making sons as partners in the business, Buggaiah made them jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaiah was not a material witness because even as per D.W.1, Buggaiah was not in the habit of disclosing his business dealings to others. When the entire evidence is on record, the Court should ignore the question of burden of proof and appreciate the evidence to find out the most probable case. 33. The Court should draw inference from the events that existed immediately after Buggaiah's shifting to Secunderabad. He started a firm known as M/s. Veesamsetti Buggaiah and Bilakanti Ramaiah. The funds for investing in the said firm, in all probability, came from joint family nucleus. All the sons stayed with the father; they had a common mess; Buggaiah was acting as karta of the family; Buggaiah performed marriages of defendants 3 to 6 and marriages of daughters of defendants 3 and 4. Placing reliance on the evidence of family witnesses P.W.1, D.W.1, D.W.2, D.W.3 and D.W.4 as well as non-family witnesses P.W.3, P.W.4, D.W.6 and D.W.8, he would submit that Buggaiah commenced business immediately after coming to Secunderabad with the money he brought from Agapaili. Even after starting other firms, the day's collections were pooled from all the businesses and account books were b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Subrahmanya Sastry v. Lakshminarasamma, AIR 1958 AP 22 (DB), Krishna Kumar v. Kayastha Pathshala (supra), Srichand v. State of Maharashtra, , and Vidhyadhar v. Manik Rao, . He also placed reliance on the decisions in I.T.Commr. v. Kalu Babu Lal Chand, , Parbati Kuer v. Sarangdhar, , and Ms. Ratanchand Darbarilal v. I.T. Commr., M.P. , as well as the decisions in Ram Nath v. Chiranji Lal, AIR 1935 Allahabad 321 (FB), and Krishnan v. Rengachari, (DB), in support of the contention that separate accounts and separate income tax returns do not in any manner dilute the inference to be drawn from the circumstances that all the properties were joint family properties. 36. The learned Counsel also vehemently opposed Ex.B97 Will. He would submit that the original Will would show that it was fabricated and Buggaiah did not execute the Will with full knowledge that it is a Will. In the absence of other particulars in the Will, exclusion of defendant No. 7 from the succession would show that the Will is shrouded with suspicious circumstances. The learned Counsel placed reliance on the judgments of the Supreme Court as well as this Court in H. Venkatachala v. B.N. Thimmajamma, , Purnima Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ergent aspects. The only person i.e., Rangaiah who could have spoken about the pre-1948 family situation was not examined by the plaintiffs and, therefore, adverse inference has to be drawn against plaintiff. As defendants 1 to 4 and 8 filed a common written statement and also examined D.W.3 on their behalf, the non-examination of defendants 1 to 3 does not in any manner lead to an adverse inference against them. D.W.3 and D.W.1 were examined and there is no noteworthy effort to discredit their evidence. On the question of the Will, he would submit that sixth defendant was not associated with the execution of the Will and Buggaiah died after one year ten months of the execution of the Will. There are no suspicious circumstances and D.Ws.4 and 7 have properly explained all the doubts that were raised. The plaintiff as well as fifth defendant admitted the execution of the Will Ex.B.97 by Buggaiah and, therefore, the Will cannot be disbelieved. The Will was challenged only on the ground that it was executed by using undue influence. The plaintiffs did not plead or prove the alleged undue influence. 40. Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8 submits that the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a Hindu joint family provenly owns and possesses joint family properties, a member with an undivided share in such properties, may on his own acquire and enjoy separate estate in addition to the undivided share. In such an event, the other joint family members cannot claim separate self-acquired property of other member as joint family property unless two conditions are pleaded and proved. First of such conditions is blending. When the individual member who acquired estate on his own has voluntarily thrown the same into the common stock/common hotch pot with the intention of abandoning exclusive vesting duly establishing that a member who had separate self-acquired property has clear intention to waive his separate rights. An inference cannot be drawn from the mere fact that a member who has self-acquired property allowed other members of the family to use it conjointly himself. An inference is also not permissible from the fact that income of the separate property was used to support his close blood relations and member of a joint family. The second situation where separate self-acquired property is treated as joint family property, is when investment for a business activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. (i) Proof of existence of joint family does not lead to a presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question have been acquired, the burden shifts to the party alleging self-acquisition to establish that property was acquired without the aid of joint family funds. (ii) The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. The important thing to consider is whether the income which the nucleus yields is sufficient to lead to an inference that acquisitions were made with that income. A building in the occupation of the members of a family yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value. 47. The facts in Srinivas v. Narayan (supra) are to some extent similar to the facts presented in these appeals. I Will refer to them at appropriate plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. 50. The conspectus of the above pronouncements is that there is a presumption in Hindu Law that a family is joint. Nonetheless, there is no presumption that the property owned by any member or members of the joint family is property of Hindu joint family. The member asserting the property to be joint family property, has to prove by cogent and convincing evidence that the member or members acquired the property by investing joint family nucleus, in which event the onus shifts to the member or members who assert that it is not joint family property. These are, however, not abstract qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at his paternal uncle Rangaiah and his father told him about the events before and immediately after 1948. 54. P.W.1 deposed that the family of senior Srisailam and his sons Buggaiah and Rangaiah (another son Narayana had pre-deceased Buggaiah) belong to a trading family. They were doing cloth business and/ or kirana business. After winding up the affairs at Agapalli, Buggaiah started business in hardware at Secunderabad. By that time he had performed the marriages of defendants 1 and 2. At Secunderabad, he was living in the house of Janamma at Kandoji Bazar. Defendants 1 and 2 were assisting him in the business. In 1960, a house in the name of Buggaiah was purchased. The other properties were purchased in the names of his brothers. The marriages of defendants 5 and 6 were performed by Buggaiah. After the property was purchased in the name of fifth defendant and before Buggaiah could buy any property in the name of P.W.1, litigation between Swarnalatha, first wife of P.W.1 and the family started in 1972 and it was pending till 1977. The first wife of P.W.1 filed a bigamy case against P.W.1, his parents, brothers and also initiated proceedings for maintenance and divorce. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to know through his father that his paternal uncle Rangaiah and grandfather Srisailam used to do business in cloth and kirana and that he does not know in what name and style grandfather did the business. He also admitted that except father and uncle telling about the grandfather's business, there is no record to show that grandfather did business in cloth and kirana, that he does not have any record of ancestral lands and that there is no record to show that ancestral lands were sold either by grandfather or by father. It was suggested to him that Buggaiah came to Secunderabad as he was unable to maintain large family at village and that he did not bring any money from the village. 55. P.W. 1 admits in the cross-examination by defendant No. 7 that he filed counter/written statement in O.P. No. 189 of 1975 on the file of the III Additional Judge, City Civil Court, Secunderabad filed by his wife. In the said counter marked as Ex.B48, he averred that there is no joint family and that he was not a member of joint family. He, however, denied the suggestion that the said statement is correct. He explained that he made such a statement on the advice of his father in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the hospital, he called on him when he (Buggaiah) told him that he should see that all his sons take the property equally. He also stated that after the death of Buggaiah, on the request of plaintiff and defendants 1 to 4, he visited Secunderabad for settling the disputes. 58. It is interesting to notice that from the notices exchanged between the parties before filing the suit or in the evidence of P.W.1 we do not come across this aspect of the matter that at the request of plaintiff and defendants 1 to 4, P.W.3 visited Hyderabad for settling the disputes. 59. Nothing important comes out of the evidence of P.W.4 who is brother-in-law of P.W.1. He was examined to show that it is he and his mother who paid ₹ 30,000/- that was paid to the first wife of P.W.1 in the proceedings for divorce. His evidence cannot be believed. When P.W.1 categorically admitted that it is lie who paid ₹ 30,000/- by way of three demand drafts for ₹ 10,000/- each and that the amount was debited in the account books of Anantha Lakshmi Hardware Stores, P.W.4 does not conceal his anxiety when he says that he and his mother paid ₹ 30,000/- to Swarnalatha, 60. The plaintiff also add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not proper. While appreciating the evidence of D.W.1, it should be remembered that she is an illiterate lady, but her abundant experience in life that enabled her to bring up eight children and take care of a large household with few or negligible complaints from a son here or a daughter-in-law there must be taken to make her worldly-wise and she cannot be treated as ignorant simpleton. She was a lady who can be presumed to have no partiality towards anybody and she assessed the situation evenly. There were no complaints by any of the sons that she was in the habit of taking sides with a member or members of the family or that she was bent upon helping a particular son and harming another. Like any elderly lady in-charge of the household of a big family, she was not much interested in the business affairs of Buggaiah or sons. She was not aware of the financial dealings and earnings of the members of the family. This does not, however, mean that she was blind and deaf to all the events that were unfolding before her at Agapalli before 1948 and at Secunderabad after the death of Buggaiah in 1978. It would be futile to contend that the evidence should be eschewed on the ground that sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y stayed in the house of Udutha Janamma as tenants for about two years. Later, they shifted to Item 6 of plaint A schedule as tenants. Her husband and sons were participating in the business at General Bazar till second shop was opened. She denied the suggestion that Buggaiah got opened a shop in the name of fifth defendant and Sridhar who is the son of eighth defendant. She also stated that her husband got opened another shop in the name of plaintiff and fifth defendant at General Bazar, which was later closed. Anantha Lakshmi Hardware Stores was opened by Buggaiah and was managed by the plaintiff and that Koteswara Rao did not work in the hardware shop after lie closed down the shop set up him and the plaintiff. In the cross-examination by the plaintiff, she reiterated that her husband carried on cloth business and that Rangaiah carried on kirana business. Her husband owned two houses at Agapalli i.e., Items 10 and 11 of plaint A schedule and she does not know how they were purchased by Buggaiah. Buggaiah used to carry on cloth business in the house and earned sufficient money to their livelihood during their stay at Agapalli. In those days, the monthly expenditure of the family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indu joint family and denied a suggestion that all the brothers were individually collecting rents from their respective tenants to the exclusion of father, mother and other brothers. 68. Defendants 1 to 4 filed a joint written statement, which was adopted by defendant No. 8. These five defendants examined defendant No. 4, Ayodhya Ramulu as D.W.3. On many aspects he corroborated the evidence of D.W.1. He is a man who is aware of other businesses apart from the business in which he was a partner. Everybody admits that he was well versed with all business firms/concerns and was also aware of accounts and purchase of properties by Buggaiah and defendants 1 to 5. In his chief examination he stated that Buggaiah migrated to Secunderabad in 1948 for livelihood. In the village, Buggaiah was doing fire wood business and mother was stitching blouses for wages. His father did not bring any property from the village and started a business in the partnership with the finances given by well wisher Bilakanti Ramaiah in the name and style of Veesamsetti Buggaiah and Bilakanti Ramaiah in hardware and paints for about one or two years. After Ramaiah retired, his father continued to run the busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.B97 and he fought the rent control case and got evicted the tenant. He categorically stated that P.W.3 S.R.K. Hanumantha Rao, never came to the hospital and talked to his father. He spoke about the dislike developed by his father towards S.R.K. Hanumantha Rao, on account of his interference in searching a bride for him. He also stated that after the death of Buggaiah, it is he who paid the house tax for Item 1 house in the plaint A schedule. 71. Defendants 1 to 4 and 6 to 8 also marked Exs.B1 to B110 including entries marked in the ledgers. As already noticed, most of the exhibits marked are account books and ledgers and entries made in the account books. They were marked to show that account books of each firm of the B schedule were different, that every partner was filing income tax returns separately and that every partner had acquired individual properties. Ex.A.43 is certified copy of Rent Control Petition filed by Buggaiah for evicting tenants from Item 6 of 'A' schedule. Considerable emphasis is laid on the document by plaintiff and fifth defendant to submit that even Buggaiah allegedly admits therein that plaint 'A' and 'B' schedule premises belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.W.2, Koteswara to, plaintiff in O.S. No. 37 of 1983 was also of tender age when Buggaiah came to Secunderabad and he admitted the evidence of P.W.1. He does not support P.W.1 on the question of family of Srisailam owning any lands. From the scant evidence it is only possible to hold that Buggaiah did not hold any lands. It is not possible to come to any conclusion that he got two houses in any family partition. What was the business of Buggaiah and his brothers at Agapalli ? 75. P.W.1 and D.W 2 deposed that Buggaiah was doing kirana and cloth business at Agapalli. D.W.3, Ayodhya Ramulu says that Buggaiah was doing cloth business and Ramaiah was doing kirana business in the adjacent house at Agapalli. P.W.1 and D.W.2 who are sons of Buggaiah in all probability did not even cross the age of minority in 1948. The best evidence available on record is evidence of D.W.1, wife of Buggaiah. She gave evidence that Buggaiah carried on cloth business in the village, that he used to get clothes on credit basis, and used to sell in the village. It is common placed knowledge that in small villages the person selling cloth will carry clothes on his head from place to place and sell it. A sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e came to Secunderabad to move up in life, was strongly opposed by defendants 1 to 4 who alleged that Buggaiah was very poor and had no ancestral property. They contend that their father had very meager and negligible assets not yielding any income. They also alleged that there was no partition between Buggaiah and his brothers of any ancestral properties and that Buggaiah shifted to Secunderabad to eke out his livelihood. The fifth defendant in his written statement sails with plaintiff Krishna Murthy, whereas sixth defendant disputed the claim of the plaintiff that Buggaiah was well off and shifted to Secunderabad for better prospects. The sixth defendant further stated that Buggaiah could not eke out his livelihood in his native village where he could not succeed in his business and therefore he came to Hyderabad, that he did not bring anything from his native village and that there was no joint family nucleus to start business. Koteswara Rao, plaintiff in O.S. No. 37 of 1983 (fifth defendant in O.S. No. 29 of 1983) interestingly states in his plaint that Buggaiah who was born in a traditional family at Agapalli divided and separated himself from his brother, carrying on his bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouses and subsequently he started iron shop in partnership with one Bilakanti Ramaiah which was carried on for a period of two to three months. When Ramaiah retired from partnership due to til-health of his wife, Buggaiah continued the business. D.W.3, Ayodhya Ramulu, who gave evidence on behalf of defendants 1 to 4 corroborates D.W.1 that Buggaiah was doing firewood business and his mother D.W.1 was stitching blouses even at Agapalli. He also deposed that Buggaiah started business with Bilakanti Ramaiah in partnership and the finance was arranged by Ramaiah and Buggaiah was working partner in the business which was run in the name of Visamsetti Buggaiah and Bilkanti Ramaiah. Both of them carried on business in hardware and paints for about one or two years. After Ramaiah retired from business due to personal reasons Buggaiah continued the business in the name of Visamsetti Buggaiah as sole proprietary concern. He also deposed that his father was getting stocks on credit basis and that he had no working capital. 77. For their case, P.W.1 and D.W.2 deposed that Buggaiah came to city to earn more money, that he wound up cloth shop in the village and started business in hardware in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his sons 78. It is admitted by all the parties before the Court that the plaint-B schedule businesses are all partnership firms started by Buggaiah and his sons one after the other. The following chart would give the particulars of plaint-B schedule businesses. Chart showing particulars of Plaint 'B' Schedule businesses Sl. No. Shop concern Name and address Started in the year Partnership or Proprietary Name of the partners and share of each of them Exhibits 1. M/s. Veesamsetty Buggaiah, General Bazar at Secunderabad 1957 Partnership V.Buggaiah - 4 Anas Ex. B43 D1 V Yadagiri - 3 Anas D2 V Narasimhulu - 3 Anas D3 V Laxmi Narasimhulu - 3 Anas D4 V Ayodhya Ramulu - 3 Anas 2. Branch -do- General Bazar at Secunderabad 1968 -do- V. Buggaiah - 4 Anas Ex.B43 D1 V. Yadagiri - 3 Anas D2 V. Narasimhulu -3 Anas D3 V. Lasminarasimhulu - 3 Anas D4 V. Ayodhya Ramulu - 3 Anas 3. M/s. Srinivasa Enterprises, Malkajgiri 1975 Proprietary D 1V.Yadagiri 4. M/s. Laxmi Agencies, Malakajgiri 1976 Proprietary V. Buggaiah 5. M/s. Anantha Laksmi Hardare Paints Stores, General Bazar, at Secunderabad 1965 Partnership 1965 1976 Exs. B.44 and B.45 respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be treated as joint family businesses. P.W.1 and D.W.2 spoke about these in support of their pleadings. They deposed that all the four shops were situated within the distance of 100 meters, that there was no competition among four shops, that there was transfer and retransfer of stocks, that there were mutual sundry debts and sundry credits among all the four firms and that every evening all the defendants in-charge of their respective shops would report to Buggaiah and account books will be prepared as per the instructions of Buggaiah. It is their case that Buggaiah invented the system of constituting various firms with his sons in different permutations and combinations to get over excessive income tax liability. They allege that all the businesses were started with the funds invested by Buggaiah which he could arrange by utilising the joint family nucleus brought from Agapalli and therefore all the subsequent business ventures must be treated as joint family businesses. 80. Sri T. Venugopal Reddy places strong reliance on the evidence of D.W.3, Ayodhya Ramulu and strenuously contends that there is practice of borrowing money from one firm to another under heading chalthi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness is a joint family business. It was held. Though a business, if it belongs to a Hindu joint family, is an item of joint family property, special considerations apply to the question whether or not a business belongs to the family or to the individual member who carries it on. If it be a joint family business, then all the members of the family are liable for its debts upon the terms and to the extent laid down by the Hindu law. Whether or not it can be said that if a joint family is possessed of some joint property, there is a presumption that any property in the hands of an individual member is not his separate individual property but joint property, no such presumption can be applied to a business. A member of a joint undivided family can make separate acquisition of property for his own benefit and, unless it can be shown that the business grew from joint family property or that the earnings were blended with joint family estate they remain free and separate.... The question whether a business carried on by a member of a joint Hindu family was begun or carried on with the assistance of joint family properly is a question of fact upon which the burden of proof lies upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-plaintiff. The Trial Court held that the joint family business subsisted and that the plaintiff is entitled to the decree as prayed for. The High Court affirmed the findings of the Trial Court. It was argued that the plaintiff and defendants were having independent income-tax assessment to show that intention/ declaration to separate and subsequent settlement was not acted upon. In that context while referring to an income tax assessment order which showed that defendants 1 to 3 were being assessed on the basis of their 1/3rd share in the business the Supreme Court observed: In a joint Hindu family business, no member of the family can say that he is the owner of one-half, one-third or one-fourth. The essence of joint Hindu family property is unity of ownership and community of interest, and the shares of the members are not defined. Similarly, the patterns of the accounts of a joint Hindu family business maintained by the karta is different from those of a partnership. In the case of the former the shares of the individual members in the profits and losses are not worked out while they have to be worked out in the case of partnership accounts. 86. In I.T. Commr. v. Kalu Babu L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the firms are joint family businesses. As held by the Privy Council in Ehuru Mal v. Jagannath (supra) the help received from elder member of the family in cash or kind does not in any manner change the nature of the business into joint family business. It was strenuously pressed that all the shops were located within the distance of 100 meters and there was no competition. All the defendants started business in hardware and paints only. I fail to understand how any inference can be drawn from the existence of these facts. It is not uncommon that members of same family carry on same business for various reasons like familiarity with business, goodwill with the suppliers and the consumers, etc. Acquisition of property by Buggaiah and his sons 89. Plaint-A schedule property contains 11 Items. Items 10 and 11 are situated at Agapalli. There is no dispute about items 10 and 11 that even before Buggaiah came to Secunderabad in 1948 these houses were existing. Acquisition of these two items by Buggaiah to say the least is enigmatic. Be that as it is, the other properties purchased by Buggaiah and other defendants are as follows: Particulars of Plaint 'A' schedule proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the family or the business were acquired by investing joint family nucleus, should also plead and prove that such joint family funds, if any, were adequate for acquiring the properties. 91. In Srinivas v. Narayan (supra) to which a reference has already been made, it was held that where it is established that a family possesses some joint family property, which by its nature, may have formed the nucleus to acquire the property in question, the party who alleges so, has to prove that such family nucleus is sufficient for such acquisition of property. Items 10 and 11 are admittedly dilapidated houses and no capable of generating any income. PW1 also admitted that there is no record to show that Buggaiah has any lands in Agapalli. I may observe again that the facts in Srinivas v. Narayan (supra) are similar to the facts obtaining in this case. In the said case the plaintiff, who is the adopted son of one Rukminibai filed a suit for partition claiming half share in the property, which was originally belonging to Ramachandra Kulkarni. Kulkarni had two sons, Siddopant and Krishna Rao. Both of them are entitled for their share of watan land to the whole of S. No. 138 and half share in S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence in the case. 92. In this case as already noticed, except deposing that Buggaiah was carrying on cloth and kirana business at Agapalli, there is not even a whisper in the evidence of PW1 and DW1 about the quantum of money Buggaiah brought from Agapalli. Even assuming that what P.W.1 and D.W.1 say is incorrect, there should be further evidence to show that the amount brought from Agapalli was sufficient to start the business. It is not so. When the plaintiff and fifth defendant failed to get over the first hurdle and discharge the burden to the satisfaction of the Court, any amount of evidence with regard to the business tactics adopted by Buggaiah and defendants 1 to 5 by way of tax planning does not alter the position and make plaint A and B schedule properties joint family assets. 93. It is in the evidence of D.W.3, Ayodhya Ramulu that Items 2 and 3 of plaint A schedule were purchased by defendants 1 and 2 under Ex.B.3 dated 3.8.1967 and Ex.B.1 dated 12.10.1964 respectively. Likewise, Item 4 was purchased by defendant No. 3 by registered sale deed dated 27.1.1967 (not marked) and as per the pleadings of the fifth defendant (D.W.2), he purchased Item 5 of plaint A sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 to 5. The question, therefore, arises is whether Buggaiah purchased the properties benami ? It is settled that when benami transaction is alleged, the allegation is tested with reference to the question from where the funds have come, how the parties conducted themselves with reference to the property and who had the custody of original sale deeds. Most of the account books are marked and necessary entries are also marked, which would show that the accounts of the partners including Buggaiah were shown to have used the funds at appropriate time. Ex.B.68 is account book for the year 1959-60 in respect of the firm M/s. Veesamsetti Buggaiah. The relevant pages marked as Exs.B.68(a) and 68(b) show that Buggaiah had drawn an amount of ₹ 15,000/- for purchase of house at Pan Bazar (item 1 of plaint A schedule). Entries at Exs.B.68 (c), 68(d) and 68(e) would show that Buggaiah has received the profits of the firm distributed among the partners. Ex.B.69 is a corresponding ledger for 1959-60 which also corroborates the entries made in the account book Ex.B.68. Ex.B.82 is the day book of M/s. Veesamsetti Buggaiah for the year 1972-73 and at page 587 which is marked as Ex.B.82(a) it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adalge (supra) it was not necessary to apportion the profits and it was not necessary for them to file separate income tax returns. D.W.2 in his evidence asserted that at no point of time Buggaiah and his sons filed income tax returns on behalf of alleged Hindu undivided family. The conduct of the parties in relation to the property and business is taken up as next subject of this judgment. The conduct of sons of Buggaiah in relation to the property 96. The discussion on this point also takes within its fold the other point raised before me as to whether the sons of Buggaiah were decision makers ? 97. The learned Counsel for the appellant/sixth defendant as well as the learned Counsel for defendants 1 to 4 point out that all the partners were filing individual income tax returns and at no point of time income tax returns were filed on behalf of alleged joint family. I have already adverted to this aspect of the matter. The learned Counsel would also submit that not only income tax returns were filed separately, but there were certain general features of the conduct of the plaintiff on one hand and defendants 1 to 5 on the other hand which point out that all the parties to the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and understanding among all of them with regard to fixation of price and sale of stocks. The market forces which decide the price and movement of the product as well as the balance between demand and supply, it is common practice where a firm borrows money as well as stocks from other firm or other business concern. When Buggaiah and defendants 1 to 4 were partners and there are also firms started by other sons of Buggaiah, there cannot be any surprise if the brothers in one firm borrowing money from the firms constituted by other brothers especially when the partners of the other firm are also the partners in the first firm. We cannot expect the firm to borrow money from altogether different firm when surplus money and surplus stocks were available in the firm of their kith and kin. The practice only suggests that there were very good relations among all the brothers. It must be remembered that shops are started within a distance of 100 meters in the same General Bazar and that there was no competition among all the shops and therefore it was only way to get money or stocks in need. (b) Separate Income tax Returns:--P.W.1 and D.W.3 admit that all the partners were filing inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave drawn such funds at or about the execution of respective sale deeds. I have already held that the sale deeds were marked by D.W.3, who gave evidence on behalf of defendants 1 to 4 and 8. It is not necessary to repeat the details again. Further, it is in the evidence of P.W.1, D.Ws.2 and 3 that defendants 1 to 4 were collecting rents from their respective tenants and these rents were not shown in the account books of firms. When there was a dispute between the landlord and the tenant defendants 1 to 4 individually filed cases before the Court of Rent Controller and obtained possession. Fifth defendant (D.W.2) admitted in his evidence that he recovered possession of Item-5 of plaint-A schedule property after filing the rent control case. He also deposed in his cross-examination that defendants 3 and 4 filed rent control cases and obtained vacant possession of the plots standing in their names. The sixth defendant in his evidence as D.W.4 stated that after death of his father he got impleaded in R.C. No.354 of 1976 on the file of the Rent Controller at Secunderabad and obtained possession of Item-6 of plaint-A schedule property. In none of the Rent Control Cases the tenant raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, it only means that he was worldly-wise and was able to differentiate the good or bad of his actions. The submission that he was a minor when he filed counter and evidence in the two earlier cases must be rejected as such. The question is whether admission made by P.W.1 act as an estoppel against him ? In my considered opinion, it cannot be treated as estoppel. In law a statement made by a person does not act as an estoppel for by such statement or declaration act or omission the person making statement himself have made another person to believe a thing to be true and to act upon such plea. When in the case filed by his wife he took stand that there is no joint family and that Buggaiah was not managing the affairs of the family, it may be a case of perjury, but not estoppel against PW1 to disentitle him to raise the plea for all times to come. It must be remembered, in the two O.Ps filed by his wife, defendants 1 to 8 were not his adversaries. The statement made by P.W.1 in Ex.B.13 and Ex.B.48 may not be an estoppel, but it is a strong indication that the family is not joint family. 98. I have considered various features of the conduct to show that these would certainly lead to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of defendants 1 to 4 and sixth defendant that plaint 'A' 'B' and 'C' properties are not joint family properties/businesses. Against whom adverse inference should be drawn 100. Plaintiff and fifth defendant examined themselves as P.W.1 and D.W.2 respectively to prove their case. Defendants 1 to 4, Defendants 6, 7 and 8 examined D.Ws-1, 3 and 4 on their behalf. The plaintiff also examined P.W.3. The Trial Court placed reliance on P.W.1 and D.W.2 to come to the conclusion that Buggaiah and his sons constituted Hindu joint family and that the said joint family owned the properties described in plaint-A, B and C schedules. The Trial Court also observed that defendants 1, 2 and 3, who are elder brothers did not examine themselves to show that they were not members of the joint family and the same raises adverse inference against them. The Trial Court also held that non-examination of defendants 1 to 3 belies their stand in the written statement. The learned Counsel for sixth defendant and learned Counsel for defendants 1 to 4 and 8 attacked this finding of the Trial Court as mere ipse dixit. It is their contention that P.W.1 was a minor and small boy aged about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Court. Any fact from which either by itself or in connection with other facts, the existence, non-existence, nature of extent of any right, liability, or disability, asserted or denied in any suit or proceeding necessarily follows is expressed by the phrase 'facts in issue'. (See Section 3 of the Indian Evidence Act, 1872). As per Section 101 of the Evidence Act a person who desires the Court to give judgment as to any legal right or liability depending on the existence of facts, must prove that those facts exist and the burden of proof lies on such person and he would fail if no evidence at all was given on either side. Under Section 114 of the Evidence Act the Court is entitled to presume the existence of any fact and as per illustration (h) a person who refuses to answer a question, an inference can be drawn that if he had given answer it would be unfavourable to him. When the Court raises adverse inference these provisions of the evidence law have to be kept in mind. 104. In Subramanya Sastry v. Lakshminarasamma, (supra) the plaintiff Lakshminarasamma filed a suit for possession of certain agricultural lands from the first defendant who claimed to be adopted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of the evidence which has not been produced and its accessibility to the party concerned have all to be taken into account. And it is only when all these matters have been duly considered that an adverse inference may be drawn. 106. In Vidhyadhar v. Manikrao (supra) the Supreme Court after referring to a large number of decisions on the question of adverse inference held as under: Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gubaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1, and the Bombay High Court in Martand Pandharinath Chaudhri v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, , also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled common written statement and examination of any of them would satisfy the requirements of law. All the defendants need not be examined. As per the decision of the Supreme Court in Vidhyadhar v. Manikrao (supra) if a party to the suit fails to appear as witness and to stake his own case on oath, the Court has to draw an adverse inference. The fourth defendant examined himself as D.W.3 and gave evidence on behalf of defendants 1 to 4 and 8. There is near unanimity that Ayodhya Ramulu, D.W.3 is a well-informed person having knowledge of all affairs of the business. Therefore, it is reasonable to presume that defendants 1 to 4 might have thought that examining Ayodhya Ramulu on their behalf would be sufficient. Further, as already noticed, under Section 134 of the Evidence Act, it is not necessary that all the defendants should be examined. Even one witness who is well informed is sufficient than examining scores of witnesses, who are ignorant of various things. Furthermore, the defendants examined the mother of Buggaiah as D.W.1 which is sufficient. Therefore, in the considered opinion of this Court, for the above reasons, adverse inference has to be drawn against plaintiff and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the businesses were family businesses and that being a statement made by Buggaiah himself in the legal proceedings, it must be given importance and weight. I am afraid, I cannot agree for reasons more than one. 111. First, while dealing with the admission made by the plaintiff in Ex.B13 and Ex.B 48 as to the fact that Buggaiah and his sons do not constitute joint family and that they do not have joint family businesses, I held that the lis was between the plaintiff and his wife. Similarly, for the same reasons it must be held that Buggaiah was fighting rent control case against tenant for more than four decades and whether the business is a family business or the business of Buggaiah was not issue. The issue was whether premises was required for expanding business of Buggaiah. Further, in paragraphs 3 and 4, it is stated that it is Buggaiah who purchased the property and that he has been experiencing lot of difficulty to expand his business which was also carried on by other family members. The words "family business" used in the context cannot mean that all the sons are carrying on the business in iron and hardware stores as joint family business. Such interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s evidence stated that his father was unconscious in the hospital due to sedation and he was in the hospital along with another patient. He also deposed that he was in intensive cardiology unit under Dr. Venkaiah Choudary. He also marked Ex.B.98 certificate to the effect that Buggaiah was under treatment for Ac Inferior Wall Infradin from 27.11.1978 to 4.12.1978 in ICC unit. He also stated that P.W.3 never visited Buggaiah while he was in the hospital. P.W.1 in his evidence stated that he dropped P.W.3 at the hospital and did not specifically state that P.W.3 visited Buggaiah. Therefore, the visit by P.W.3 to the hospital is doubtful. 114. The fact that Buggaiah was in ICC Unit is quite probable, for generally cardiac patients are not allowed to receive any visitors. Be that as it may, Ex.B.98 is challenged by learned Counsel for the fifth defendant contending that D.W.4 being a Doctor did not choose to summon the case sheet which is a permanent record, that it is more difficult to get a certificate like Ex.B.98 and that the certificate is unnatural. After considering these contentions from all angles I am not able to countenance the submission though I cannot, but appreciate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible but all matters that are "involved in it and knit up with the statement". 116. What all Buggaiah requested P.W.3; even assuming that P.W.3 truly visited Buggaiah - was to see that all sons get property equally but he never made a statement that all the properties and businesses are joint family properties and businesses and therefore the statement made by Buggaiah and P.W.3 cannot be brought under Section 32(3) or 32 (7) of the Evidence Act. 117. Point No. 1, for the above reasons, is answered accordingly and it must be held that plaint - 'A' 'B' and 'C' schedule properties are not joint family properties of Buggaiah and his sons and that plaintiff and fifth defendant have no right to seek partition of the same. Whether the Will, Ex.B97 dated 15-2-1977 was true and valid? 118. Under the Will Ex.B97, which was registered on 19.2.1977, late Buggaiah bequeathed Item No. 1 of plaint-A schedule house; Item No. 4 of plaint-B schedule business shares in Panyam Cements and Mineral Industries Limited, shares in Duncan Oil Limited, Bangalore and his interest in any partnership firm and all his movable and immovable properties or any business to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to how undue influence was brought on Buggaiah and in the absence of any proof, it cannot be a ground for rejecting the Will Ex.B.97. He also submits that when the caveator challenges the Will there should be specific allegations as to why the Will is not valid and binding or as to why it is not the last testament of the testator. When the Will is registered and it is validly proved by examining attestors as per the provisions of the Indian Evidence Act and the Indian Succession Act, the Court should accept the Will. If any suspicious circumstances are pleaded in a given case where the propounder has taken active part in execution of the Will it is for the propounder to discharge the burden and explain and clear all doubts regarding suspicious circumstances. The sixth defendant has proved the Will and there are no suspicious circumstances because the sixth defendant did not take active part in execution of the Will Ex.B.97. He also would urge that Buggaiah died after two years of execution of the Will and there is evidence of all the witnesses that Buggaiah was hale and healthy and was in a sound disposing state of mind. 121. Sri T. Venugopal Reddy, learned Counsel for the opposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a last Will of the testator. v. When the execution of the Will is alleged to be tainted with suspicious circumstances, the evidence let in by the propounder must satisfy the judicial conscience and mere proof of Will as per Law does not make the Will last testament of the testator. vi. If a caveator alleges fraud, undue influence and coercion in regard to execution of the Will such pleas have to be proved by the caveator. Even in the absence of such pleas the circumstances surrounding the execution of the Will may raise doubt as to whether the testator was acting on his own volition. 123. After summarising the principles in Jaswant Kaur v. Amrit Kaur (supra) it is apt to quote the following passage from the said judgment: In case where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not known that registration may take place without the executant really knowing what he was registering... Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-Registrar on 19.2.1977. All effort was made to impeach the veracity of evidence of D.Ws.5, 6 and 7 in vain, it was even suggested to D.W.5 Obulpali Choudary that he did not prepare the Will, but he was owning it to help sixth defendant. D.Ws.5, 6 and 7 were never even suggested that sixth defendant who was examined as DW4 came to office of DW5 on three occasions when Buggaiah visited the Lawyer's office in connection with preparation of Ex.B97. Indeed, it is in the evidence of D.W.4 (sixth defendant) that on the date of execution of the Will he was not in Hyderabad. D.W.4 is also categorical in his evidence that he did not know about the existence of the Will till it was read over by D.W.8. D.W.1 mother of the plaintiff and defendants also supported when she said that Buggaiah handed over a closed envelop containing registered Will, that it should be revealed only after his demise. On the twenty-first day after death of Buggaiah she called D.W.8 and asked her to read over the Will to all her sons. Execution of the Will by Buggaiah is proved in accordance with law. It is nobody's case that Buggaiah was not in sound disposing state of mind when he executed the Will. He was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over and explained in Telugu to Buggaiah. The evidence of D.W.5 shows that Buggaiah did not execute the Will in peremptory manner nor did he take steps for registration in hasty manner. He consulted Lawyer, his Chartered Accountant and decided to execute a Will. These facts are amply proved by evidence of D.W.5. Non-examination of Venganna does not in any manner help the learned Counsel because Radha Swamy who is a clerk of Obulpati Choudary was examined as D.W.7 and he spoke the truth about the execution. The theory that the Will was got prepared on blank papers without the knowledge of Buggaiah stands disproved by the evidence of D.Ws.5 and 6. 130. Secondly, it is contended by the learned Counsel that there is no evidence of Sub-Registrar that the Will was read over to Buggiah nor it was explained to him in Telugu and therefore the Will cannot be believed. The submission is obviously made keeping in view the decision of the Supreme Court in Rani Purnima Debi v. Khagendra Narayan (supra) wherein it was observed that where the testator is in the habit of signing on blank papers and where signature of testator is not in the same ink with the same pen with which the body of the Wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not choose to gift any property to fifth defendant and seventh defendant. Therefore, he submits that the Will is unnatural Will. It is settled law that when the dispositions made in the Will are unfair and unnatural or the dispositions made in the Will appear to be improbable it gives rise to suspicious circumstances. It is also well settled that a mere exclusion of natural heirs in the Will does not by itself render the Will unnatural. Whether the Will is unnatural, improbable or unfair has to be examined in the light of relevant circumstances [See Venkatachala Iyengar v. Thimmajamma (supra) and Rabindra Nath Mukherjee v. Panchanan Banerjee, ]. If the intention of the testator is to exclude natural heirs, the mere fact that such natural heirs are excluded from succession does not create suspicion. In Ex.B.97 the testator states that all other six sons who are elder to Srisailam, sixth defendant, are doing business and are well-established, that Dr. Srisailam is yet to start his professional career and with an idea of providing sixth defendant some source of income Buggaiah bequeathed properties mentioned in the Will. It is commented that even on the date of execution of the Will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When the person who could have benefited if the Will had been executed in her favour, herself respected the Will and did not raise any ground as to its unnaturality and in such circumstances the Will in question cannot be doubted. This submission is also therefore rejected. 133. Fourthly it is contended that non-publication of Will and secrecy maintained by all about the Will is not properly explained and therefore it has to be disbelieved. It is further elaborated by the learned Counsel for the respondents that Buggaiah was treating all his sons equally with same amount of affection. But, in spite of this, Buggaiah himself kept Ex.B.97 Will secret. A proper explanation is offered by the mother, D.W.1 herself. She stated in her evidence that her husband handed over a sealed cover informing her that it contained registered Will and it should be revealed after his death. It is customary especially in a closely-knit family not to publicise the Will. Therefore, the behaviour of Buggaiah in not revealing the Will is understandable. Likewise, D.W.1 being his wife did not reveal it till after death of Buggaiah about the Will. It is admitted that on 21st day after death of Buggaiah D.W.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xiety to details. D.W.5 might have thought that Buggaiah was staying in Secunderabad and therefore he thought that a proper way of showing execution is mentioning it as executed in Secunderabad. This cannot be a suspicious circumstance to throw out the Will. 136. It is nobody's case that sixth defendant who is propounder of the Will has taken predominant role in execution and registration of the Will. D.Ws.5, 6 and 7 in one voice state that sixth defendant was not at all associated with execution of the Will. This is a strong circumstance in favour of propounder and against caveators that there are no suspicious circumstances surrounding the Will. There is a long line of decisions of the Apex Court and various High Courts that when a propounder takes active part in execution and registration of a Will, the burden lies on the propounder to remove and explain all suspicious circumstances surrounding the Will. If the propounder has not taken any active or predominant part in execution or registration of the Will, the presumption must be in favour of the propounder that there are no suspicious circumstances surrounding the Will. As laid down by the Supreme Court in Venkatachala Iy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of undue influence without any vagueness. A Constitution Bench of the Supreme Court in Ladli Parshad v. Karnal Distillery, , considered the principles to be applied for examining the complaint of undue influence. Doctrine of undue influence was evolved for granting protection against transactions procured by exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. This Rule of English Common Law was the basis for enacting Section 16 of the Contract Act, 1872. Sub-section (1) of Section 16 provides that a contract is said to be induced by "under influence" where the relations subsist between the parties or such that one of the parties is in a position to dominate the will of the other and uses that position to obtain unfair advantage over the other. Sub-section (2) of Section 16 of the Contract Act further explains that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, where he stands in a fiduciary relation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t must scrutinise the pleadings to find out that a plea has been made out and that full particulars thereof have been given to examine whether undue influence was exercised or not. It was further laid down that merely because the parties were "nearly related to each other" or merely because "the donor was old or weak character," no presumption of undue influence can arise. It was further laid down: The Court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor ? Upon the determination of these issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. 140. The submission that Ex.B97 was brought out by sixth defendant by using undue influence by reason of his being a fiduciary capacity as Doctor needs to be exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. There are no suspicious circumstances surrounding execution and registration of the Will as alleged by the plaintiff and the fifth defendant. The Will Ex.B.97 is valid and binding on the plaintiff and defendants 1 to 6 and 8. Point No. 2 is answered accordingly in favour of sixth defendant and against plaintiff and defendants 1 to 5 and 8. Suits for dissolution of partnership: 142. As noticed earlier Dr. Srisailam, the sixth defendant in O.S. No. 29 of 1983 filed two suits being O.S. No. 73 of 1983 and O.S. No. 468 of 1983. These suits were for dissolution of the firms and accounts in respect of Item No. 1 and item No. 5 of plaint 'B' schedule businesses. In the suits though necessary issues were framed by the Trial Court they were not answered. Having regard to the finding on the Will Ex.B.97 they were held against the plaintiff in those suits. In a suit for dissolution of the firm, the plaintiff has to plead and prove the grounds adumbrated in Section 44 of the Partnership Act, 1932. If the partnership is at will, the plaintiff is required to issue a notice of dissolution. The Trial Court ought to have given its finding on all the issues framed in these two suits as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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