Musunuru Nageswara Rao v. Thota Venkateswarlu

Judgment

HON’BLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.42 of 2018 Judgment: 1 This second appeal under Section 100 of the Code of Civil Procedure is aggrieved against the judgment and decree, 28-10-2017, in A.S.No.25 of 2012 on the file of the XI Additional District Judge, Tenali, Guntur District, reversing the judgment and decree, dated 29-11-2011, in O.S.No.73 of 2006 on the file of the Principal Senior Civil Judge, Tenali.

2. Originally, the trial Court clubbed both the suits O.S.Nos.73 of 2006 and 27 of 2009. O.S.No.73 of 2006 was filed by the plaintiff for seeking the relief of possession of the plaint schedule property and also for recovery of damages as prayed in the plaint. G.S.No.27 of 2009 was filed by the 3^^ defendant in O.S.No.73 of 2006 for seeking the relief of cancellation of registered 3^^ defendant herein in favour of the plaintiff herein. The learned trial Judge settlement deed to {have been executed clubbed both the suits and a common judgment was pronounced in both these suits and O.S.No.73 of 2006 was decreed partly by granting possession of the plaint schedule property to the plaintiff and the relief of recovery of damages The learned trial Judge dismissed the suit filed by the was dismissed. 3*^^ defendant herein vide O.S.No.27 of 2009, against which no appeal was preferred by the plaintiff in the said suit. Therefore, the said finding in O.S.No.27 of 2009 reached its finality. Aggrieved against the judgment and decree passed in O.S.No.73 of 2006, A.S.No.25 of 2012 was filed by the defendants 1 to 3 in the suit. The learned first appellate Judge allowed the appeal by setting aside the judgment and decree passed by the learned trial Judge. Aggrieved thereby, the plaintiff approached this Court by way of second appeal.

3. The appellant herein is the plaintiff and the respondents are defendants 1 to 3 in O.S.No.73 of 2006. 2 j VGKR, J. sa_42_2018 ^

4. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the suit O.S.No;73 of 2006.

5. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.73 of 2006, is as follows: (a) It is pleaded that the plaintiff is the grandson of Nagaratnam, who is sister of Tulluru Venkata Ramayya who got a son Hanumantha Rao i.e., the 3^^ defendant’s husband. Late Tulluru Hanumantha Rao got item No.1 of the schedule property registered deed, 17-8-1978, by Jagarlamudi Siva Nageswara Rao for

executed valid consideration. The 3^'^ defendant similarly became owner of Ac.0-77 cents of land in D.No.635 of Kolakaluru Village including Ac.0-50 cents in item No.2 of the suit schedule property under registered sale deed, dated 29-4-1981, executed by J.S. Nageswara Rao for valid consideration and.they had been in possession and enjoyment of the said properties with absolute rights to the knowledge of one and all including the defendants 1 and 2 herein, who are father and son and happened to be their neighbours belonging to different castes of the 3^^^ defendant and her husband, (b) It is further pleaded that the 3'''^ defendant had no issues and as such. they used to depend upon the plaintiff and his family for their day-to-day necessities. 3'^'^ defendant. The defendants 1 and 2 are southern neighbours of the Late Tulluru Hanumantha Rao during his life time, in a sound and disposing state of mind executed his last Will and testament, making two bequeaths, one to the plaintiff jn respect of item No.1 of the suit schedule property, directing him to discharge his debt of Rs.25,000/- payable to one Patibandia Seetha Ramaiah by selling away sarkar donka under his possession as per convenience of the plaintiff and pay some amount to his Sagothraja that performs his obsequies and the remaining amount to be given to his wife, and other bequeath to the 1®^ defendant i.e. vested remainder in respect of the residential thatched house bearing No. 14-108 after his life time wife/3'^^ defendant. The said testator died on 3 VGKR, J. sa 42 2018 22-11-2004, therefore the plaintiff became absolute owner of item No.1 of the suit schedule property harvested the paddy crop and raised sun-hemp, while the 3'^^ defendant became life estate holder of the above said residential thatched house. The obsequies of Hanumantha Rao were performed by Tulluru Sambasiva Rao of the same village and the plaintiff looked after all the affairs but could not sell the sarkar donka and discharged the debt as no purchaser came forward. On the 11'*^ day ceremony of late Hanumantha Rao, the above said Will was read oyer in the presence of all the invitees and the defendants as well, and there was no protest from anybody^ much less from the defendants, (c) It is further .pleaded that the 3'^^ defendant, late Hanumantha Rao’s wife, having satisfied with the service of plaintiff, out of her love and affection executed a registered gift deed, dated 11-02-2005, in respect of item No.2 of the suit schedule property consisting of Ac.0-50 cents of land. The plaintiff accepted the same and accordingly,' he bad been in possession and enjoyment of item No.2 of the suit schedule property. The plaintiff, even during the life of Hanumantha Rao, cultivated the properties of Hanumantha Rao and 3'^'^ defendant including the suit schedule properties. The plaintiff also submitted an application, dated 16-6-2005, to issue pattadar pass book and title deed in his favour in view of the WHI executed by Tulluru Hanumantha Rao and on account of his death on 22-11-2004, and also obtained pattadar pass book and title deed for item No.2 of the suit schedule property basing upon the registered gift deed,, dated 11-02-2005. The 3^^ defendant remained as absolute owner of Ac.0-27 cents of wet land in between item Nos.1 and 2 while residing in her thatched house as life estate holder under the above said Will, dated 20-11-2004. The 1®* defendant was learnt to have obtained alleged registered sale deed, dated 13-5-2005, for aip alleged amount of Rs.82,500/- from the 3^^^ defendant as if her husband died intestate for the purpose of Similarly, the 2^^ defendant was learnt discharging alleged promissory notes. to have obtained 3'^^ defendant in respect of Ac.0-25 cents of land belonged to the 3'"'^ defendant. 13-5-2005, gift deed, registered a 4 VGKRJ. sa_42_2018 0 (d) It is further pleaded that thQ defendants 1 and 2 removed boundary stones to item No.2 of the suit schedule property in high-handed manner and then the plaintiff moved the Mandal Surveyor by paying challan, dated 22-6-2006 and the Mandal Surveyor duly fixed boundary stones for item No.2 of the suit schedule properties and that the suit for delivery of possession of suit schedule properties from the defendants to the plaintiff was filed by the plaintiff.

6. The 1®* defendant filed written statement before the trial Court denying the material averments made in the plaint, which was adopted by the 2'^^ defendant by filing a memo. The brief averments in the written statement of 1 defendant are as follows: It is contended that the plaintiff is no way related to the defendant and her husband Tulluru Hanumantha Rao. Tulluru Hanumdhtha Rao did not execute any Will on 20-11-2004 and did not make two bequeaths in favour of the plaintiff or anybody else in respect of the plaint schedule property and other properties. The Will, dated 20-11-2004, filed by the plaintiff is a forged and fabricated one. On 13-5-2005, the 3'^'' defendant sold item No.1 of the plaint schedule property for a valuable consideration of Rs.82,500/- to the 1®* defendant for the purpose of discharging debts due to others and thereby discharged the promissory 'note, dated 11-10-2003, due to Changalasetty Peda Srinu, son of Venkateswarlu, to a tune of Rs.27,500/- and discharged the promissory note debt, dated 18-02-2003, due to Senagabandi Venkateswarlu to a tune of Rs;30,000/- and also discharged promissory note debt to a tune of Rs.25,000/- from out of the sale Consideration of item No.1 of the suit schedule The 1®^ defendant paid property. 3'"'^ defendant and facilitated her to discharge the above promissory note debts. The 3'”'^ defendant executed a registered sale deed, dated 13-5-2005, bearing an amount of Rs.82,500/- to document No.801/2005 of Sub Registrar’s office, Duggirala. On the same day, the 3'^'^ defendant delivered possession of item No.1 of the plaint schedule property to the 1®* defendant, the plaintiff never became absolute owner of 5 VGKR, J. sa 42 2018 item No.1 of the plaint schedule property. The 3'^'^ defendant did not execute the gift deed, dated 11-02-2005, in respect of item No.2 of the plaint schedule property as alleged in the plaint in favour of tfie plaintiff. He prayed to dismiss the suit with costs.

7. The 3 rd defendant filed written statement by denying the plaint averments and further contended that the plaintiff is not a relative of the 3^^ defendant or her husband Hanumantha Rao as alleged in the plaint and he never looked after this defendant or her husband and her husband did not execute any Will, dated 20-11-2004, in favour of the plaintiff bequeathing item No.1 of the plaint schedule property, The piaintiff created the alleged registered gift deed, dated 11-02-2005, in respect of item No.2 of the plaint schedule property with mala fide intention to grab the property of 3'"'^ defendant, she filed the suit in O.S.No.257 of 2009 on the file of Principal Senior Civil Judge’s Court, Tenali, for cancellation of the pift deed, dated 11-02-2005 and the same is pending. Tulluru Hanumantha Rao died intestate.leavi ng behind the 3^^ defendant as sole legal representative after the death of her husband, his entire estate including item No.1 of the plaint schedule property to the 1®* defendant and delivered possession of the seme. The 3^^^ defendant and her husband brought up the 2 performed his marriage and also the 2"^^ defendant looked after late Tulluru defendant as their foster son and got Hanumantha Rao affectionately during his life time and also looking after this defendant affectionately. For that, on 13-5-2005, this defendant gifted Ac.0-27 cents of wet land to the 2*^ defendant under a gift deed, dated 13-5-2005 and handed over possession of the said property to the 2"^ defendant and the remained only Ac.0-50 cents i.e. item No.2 of plaint schedule property with this defendant for her livelihood, there are no oth^r property and source of income except item No.2 of the 3''^ defendant. The 3'^'^ defendant is aged woman. She prayed to dismiss the plaint schedule property for the livelihood suit with costsi. „

8. On the basis of above pleadings, the learned trial Judge framed f following issues for trial: 6 VGKR,J. sa_42_2018 (1) Whether the plaintiff has got title to the plaint schedule property ? (2) Whether the plaintiff is entitled for possession of the'plaint schedule property ? (3) Whether the plaintiff is entitled for compensation of Rs. 1,000/- ? (4) Whether the plaintiff is entitled for mesne profits ? and (5) To what relief ?

9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 to 7 were examined and Exs.A-1 to A-19 were marked. On behalf of the defendants, D.Ws.1 to 6 were examined and Exs.B-1 to B-5 were marked. Ex.X-1 was also marked. arguments of both sides and

10. The learned trial Jucige gfter conclusion of trial, on hearing the on consideration of oral and documentary evidence on record, partly decreed the suit. Felt aggrieved thereby, the unsuccessful defendants 1 to 3 filed the appeal suit in A.S.No.25 of 2012, wherein the following points came up for consideration: ’ (1) Whether the Will executed by late Tulluru Hanumantha Rao bequeathing item No. 1 to the plaintiff, dated 20-11-2004 is free from suspicious circumstances and genuine ? (2) Whether the suit filed by the plaintiff for possession of the plaint schedule property without seeking the relief of declaration is maintainable ? (3) Whether the plaintiff is entitled for compensation of Rs. 1,000/- ? and (4) Whether the plaintiff is entitled for future mesne profits ?

11. The learned first appellate Judge after hearing the arguments, answered the points, as above, against the plaintiff and allowed the appeal by setting aside the judgment and decree passed by the learned trial Judge. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.73 of 2006 filed the present second appeal before this Court. 7 VGKR, J. sa_42_2018

12. On hearing both sides’ counsel at the time of admission of the second appeal on 09-01-2024, this Court framed the following substantial questions of taw; I (1) Whether the first appellate Court is justified in reversing the judgment of the trial Court with regard to the genuineness of Ex.A-2 Will merely on the basis of probabilities and suspicious circumstances as discussed by the appellate Court ? (2) Whether the first appellate Court is correct holding possession is not maintainable without seeking declaration of the validity of Ex.A-2 Will deed and Ex.A-9 gift deed by the appellant ? and (3) Whether the Court below justified in dismissing the suit to the extent of item No.2 of schedule property ignoring the fact that O.S.No.27 of 2009 filed by defendant No.3 seeking cancellation of the gift deed dated 11-02-2005 was dismissed and no appeal is preferred which has become final ?

13. Heard Sri Vedula Srinivas, legjrned Senior Counsel for appellant/plaintiff and Sri V.V.L.N. Sarma, learned counsel for the respondents /defendants 1 to 3.

14. The law is well settled that under Section 100 of CPC, High Court cannot interfere with findings of fact arrived at by first appellate Court, which is final Court of facts, except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. In the case of Bhagwan Sharma v. Bani Ghosh\ the Apex Court held as follows: “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by tl^e First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.” 1 AIR 1993 SC 398 8 VGKR,J. sa_42_2018 In the case of Kondira Daqadu Kadam v. Savitribai Sopan Gujai^, the Apex Court held as follows; “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower the mandatory appellate position’ on the basis of provisions of law applicable or its or was based upon pronouncements made by Court were erroneous being the Apex Court, contrary to settled inadmissible evidence or arrived at without evidence.”

15. The appellant herein is plaintiff in O.S.No.73 of 2006 and the respondents are defendants in the same suit on the file of the learned Principal Senior Civil Judge, Tenali. The appellant herein filed the suit for possession of suit schedule property and also for recovery of compensation with future profits. ..The trial Court decreed the said suit in part by ordering recovery of possession of the plaint schedule property and negatived the reliefs of compensation with interest and future mesne profits at the rate of Rs. 10,000/- per annum and costs. The respondents 1 to 3 herein filed first appeal before the XI Additional District Judge, Tenali. . The plaintiff has not filed any cross-objections against the judgment and decree passed by the learned trial Judge for not awarding damages and future profits by the trial Court, therefore, the said finding reached its finality.

16. The 3'"* respondent herein, by name Talluru Venkata Subbamma, filed O.S.No.27 of 2009 against the plaintiff herein for cancellation of the gift deed, dated 11-02-2005, said to have been executed by the 3'^^ defendant herein in favour of the appellanyplaintiff in the present suit. The learned trial Judge dismissed the suit filed by the 3'"^ defendant herein and gave conclusion that the registered gift deed said to have been executed by the 3^*^ defendant herein in favour of the plaintiff in the present suit is valid in respect of item No.2 of the plaint schedule property, therefore, the said finding reached its finality. ^A1R 1999 sc 471 9 VGKR, J. sa 42 2018

17. The learned Senior Counsel for apppllant/plaintiff would contend that Ex.A-2 Will is proved in accordance with taw and the learned trial Judge rightly decreed the suit, on believing Ex.A-2 Will, but the learned first appellate Judge came to wrong conclusion and set aside the findings of the trial Court. The specific case of the plaintiff is that Talluru Hanumantha Rao is the absolute owner of item No.1 of the plaint schedule property in an extent of Ac.0-75 cents in D.No.635, the same is undisputed by the defendants, it is the specific case of the plaintiff that he is a nephew of late Hanumantha Rao and late Hanumantha Rao bequeathed item No.1 of the plaint schedule property under the Will, dated 20-11-2004, in a sound and disposing state of mind and in the Will, it was also observed to discharge his debt payable to Seetha Ramaiah by selling away sarkar donka as per convenience of the plaintiff and pay some amount to the person who perforrps his obsequies and remaining amount to be given to his wife and the testator bequeathed vested remainder rights in thatched house and site to the 1®* defendant after the life time of himself and his wife/3^'' defendant. The alleged original Will was marked as Ex.A-2.

18. The propounder of the Will was examined as P.W.1. P.Ws.2 and 4 are attestors and P.W.5 is scribe of Ex.A-1. Chief-affidavit of another attestor was also filed as P.W.3, but he did not turn up for cross-examination before the trial Court and the learned trial Judge eschewed the said chief-affidavit of P.W.3. As stated supra, specific case of plaintiff is that Talluru Hanumantha Rao, who was absolute owner of item No.1 of the schedule property bequeathed the said property in favour of the plaintiff under the Will, dated 20-11-2004, in a sound and disposing state of mind. It was contended by the 1®* defendant that the plaintiff is not a relative to the alleged testator or his wife and the said relationship is denied by the defendants. But, the 1®* defendant as D.W.1 admitted in his evidence that the plaintiff is a distant relative of the testator. It is the specific case of plaintiff that he is a son of 10 VGKRJ. sa_42_2018 ^ Nagaratnam, who is sister of Talluru Venkataratnam i.e., the testator’s father. The 3^^^ defendant did not specifically denied relationship, she specifically admitted that her father-in-law Talluru Venkataratnam and the said Nagaratnam is sister of her father-in-law. She further admitted that herself and the plaintiff belong to kamma by caste, the defendants 1 and 2 are none other than the father and son, and both the defendants 1 and 2 are southern side neighbours of the house of 3*^^ defendant. The 3'^'^ defendant admitted that the defendants 1 and 2 are her southern boundary holders and they belong to different castes and she was brought by the defendants 1 and 2 to the Court. Therefore, it is evident that the plaintiff is none other than the close relative of 3^'^ defendant and the defendants 1 and 2 are neighbours of the 3'^'^ defendant.

19. The plaintiff filed original Will and marked as Ex.A-2. The said alleged Ex.A-2 Will is strongly disputed by the defendants I* to 3. Therefore, it is for the propounder of the Will to prove Ex.A-2 Will. The law is well settled that Will has to be proved in accordance with law and the same has to be proved in terms of Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act. In the case of Murthy v,.C. Saradambaf, the Apex Court held as follows: “The fact that the testator died- within a period of fifteen days from the date of the execution of the will, casts a doubt on the thinking capacity and the physical and mental faculties of the testator. The said suspicion in the mind of the court has not been removed by the propounder of the will i.e. first plaintiff by producing any contra medical evidence or the evidence of the doctor who was treating the testator prior to his death. In the instant case, there is no evidence 9S to whom the testator gave instructions to, to write the will. The scribe has also not been examined. It is also not known as to whether the assistance of an advocate or any other trustworthy person was taken by the testator in order to make the testament and bequeath the property to only the son of the testator. It is highly improbable that the only son of the testator who was a practising advocate and on whom the bequest of the house was made, was unaware of the execution of the will by his father. It is* unnatural that the ^ AIR 2022 SC 167 11 VGKR, J. sa_42_2018 father would not have disclosed to his’ orriy son about the bequest of the property (particularly when the son was a practising advocate) and had also not taken his son's assistance in the drafting as well as execution of the will. Signature of the testator on the will does not tally with his signatures on other document. Name of the person written the VVill is not known. Plaintiffs have not been successful in proving the validity of the will in accordance with law inasmuch as the suspicious circumstances surrounding the very execution of the will have not been cleared any cogent evidence, rather, genuineness remains in doubt. Plaintiffs have failed to prove the Will accordance with law inasmuch as they have not removed the suspicious circumstances, surrounding the execution of the will. Hence, Will, not being a valid document in the eye of law, no Letters of Administration can be granted to the respondents-plaintiffs.”

20. As stated supra, the plaintiff relied on Ex.A-2 alleged Will, which is It is undisputed that the said to have been executed by Hanumanth^ Rao. said Hanumantha Rao purchased item No.1 of the schedule property under registered sale deed Ex.A-1, dated 17-8-1979. The recitals of Ex.A-2 Will go to show that by the date of Ex.A-2 Will, the testator was having wife and no issues and the testator was suffering from cancer.

21. As per the recitals of Ex.A-2, the 1 defendant and plaintiff have been looking after the testator, under Ex.A-2 the testator gave item No.1 of the schedule property to' the plaintiff and his wife/S"^^ defendant was given life interest in the thatched house and vacant site and vested remainder rights were given to the 1®‘ defendant. It is undisputed that the defendant got Ac.0-75 cents of another land in the same Survey number, which is adjacent to item No.1 of the schedule property. It is also undisputed that both the items Nos.1 and 2 are contiguous plots. Therefore, it is evident that the testator has importance to plaintiff, defendant and defendant by bequeathing item No.1 of the plaint schedule property to the plaintiff and also bequeathed the house and house site to the '1®* defendant by giving life interest to the wife/S^'^ defendant. As noticed supra, Ex.A-2 Will is strongly disputed by the defendants, therefore, the said Will has to be proved in

12. 'Tf- VGKR, J. sa_42_2018 accordance with law by the propounder of the Will/plaintiff. As noticed supra, the testator did not bequeath all his properties to the plaintiff. Item No.1 of the schedule property alone was given to the plaintiff under Ex.A-2 Will. In Ex.A-2, it was recited that the plaintiff has to discharge the debt of Rs.25,000/- due by him to Seetha Ramaiah and pay the amount to a person who performs his obsequies by selling sarkar donka which was in his possession and if any amount remains, it will be given to the 3^^ defendant. The trial Court, on appreciation of the entire evidence on record, rightly held that the discharge of debt is not a conditional precedent. As seen from the original Will, it is not a conditional Will. The plaintiff explained the circumstances in the plaint as well as in his evidence for not discharging the said debt due to Seetha Ramaiah by Hanumantha Rao.

22. The recitals in Ex.A-2 Will go to show that the plaintiff has to sell sarkar donka in his possession as per his convenience and pay some amount to the person who performs his obsequies and the remaining amount is to be According to the plaintiff, no purchasers came given to the 3'''^ defendant. forward to purchase, for selling the said sarkar donka and as such prior to filing of the suit, he could not sell and discharge the debts. The material on record reveals that the alleged Will is dated 20-11-2004 and the suit was filed on 01-9-2005, in between the said approximately ten months’ period, the defendants 1 and 2 trespassed into the schedule property by removing boundary stones which leads to filing of the suit by the plaintiff on 01-9-2005.

23. The plaintiff relied on the evidence of attestors P.Ws.2 and 4. They deposed that the testator, in a sound and disposing state of mind, executed the Will, dated 20-11-2004 andiEx.A-2 was scribed by P.W.5 after obtaining instructions from the testator and the contents were read over to the testator in the presence of P.Ws.2 to 4. They further deposed that the testator satisfied with the contents and dispositions he intended and put his left thumb impression in the presence of the said three attestors, who in turn, attested the 13, VGKR, J. sa 42 2018 said Wifi in the presence of testator and lastly, the scribe put his signature at the bottom of the document, at that time Hanumantha Rao handed over his link document, pass book and title to Musunuru Nageswara Rao i.e., the plaintiff herein. The 3'“'^ defendant/ wife of testator admitted that Hanumantha Rao was present at the time, the scribe came to' her house and her husband gave link documents Exs.A-1, A-4 and A-5 and cist receipts. The wife of testator/D.W.6 admitted in her evidence that P.Ws.2 to 4 are residents of their village and she has no disputes with P.Ws.2 to 4. As noticed supra, chief- affidavit of P.W.3 was filed, but P.W.3 failed to appear before the trial Court and that his chief-affidavit was eschewed by the trial Court. P.W.5 is scribe of Ex.A-2. He also supported the evidence of P.Ws.2 and 4. Moreover, it is admitted by the defendant/D.W.1 that P.Ws.2 and 4 are the residents of his village and he has no disputes with them. Likewise, the 3^^^ defendant/O.W.6 also admitted in her evidence that P.Ws.2 and 4 are residents of her village and she is not having disputes with them. Therefore, the evidence of P.Ws.2 and 4, attestors to the Will, inspired confidence and their presence at the time of the Will is quite natural and undoubted.

24. The learned counsel for respondents/defendants placed reliance on H. Venkatachata Iyengar v. B.N. Thimmajamma^, wherein a Full Bench of the Apex Court held ars follows: “18. What is the true legal position in the matter of proof of wills? It is well- known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting ''air 1959 SC..443 14 VGKR, J. sa_42_2018 of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall pot be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator h^s to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated of these questions which determines the nature of the finding on the question of the proof of wills. It would pr/ma facie be true to say that the will has to be prpved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the decision broadly satisfaction of the prudent mind in such matters.” The learned counsel for respondents also relied on Kalyan Singh v. Smt Chhoti^, wherein a Full Bench of the Apex Court held as follows: “A will is one of the most soleijin documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish It must be stated that the factum of genuineness and authenticity of the will. ® AIR 1990 SC 396 15 I V^SKR, J. sa_42_2018 execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” The learned counsel for respondents also placed reliance on Rabindra Nath Mukherjee v. Panchanan Banerjee^, wherein the Apex Court held as follows: “A will contains the last desire of testator/testatrix. The courts, therefore, normally act in accordance with the wishes of the person concerned. But then, if the courts were to doubt either genuineness or voluntariness of the maker of the will, they would be loathe to work in accordance with what has been stated in the will. To put Jt differently, if the will is surrounded by suspicious circumstances, the removal of which is the burden-of the propounder, the will would not be probated” In the case at hand, admittedly, the testator was suffering from cancer since one year prior to the Will and Ex.A-2 Will was executed on 20-11-2004. In the Will itself, it was instructed by the testator to scribe that he was suffering from cancer since some period and he was aged about 75 years, due to that he intended to make arrangement with regard to his property. In the Will, it was recited that he was not having any children and the 3*^^ defendant is his wife and plaintiff is his son-in-law by courteisy and the 1^* defendant is his neighbour, both the plaintiff and 1®^ defendant used to attend their welfare and that the landed property in an extent of Ac.0-75 cents/item No.1 of the schedule property hereih was given to the plaintiff and the house and house site property was given to the 1®* defendant, by giving life interest to his wife/ Therefore, the disposition made by the testator under Ex.A-2 3'^^ defendant. ®AIR 1995 SC 1684 16 VGKR, J. sa_42_2018 Will is natural disposition. Furthermore, there were instructions to the scribe, to write the Will and the scribe was also examined as P.W.5. The evidence of attestors of the Will proves that tjie testator was in a sound and disposing state of mind at the time of execution of the Will and the defendant and 1®* defendant specifically admitted that P.Ws.2 and 4 are residents of their village and they are not having any disputes with them. Therefore, the propounder of the Will proved Ex.A-2 Will in accordance with law. The plaintiff having succeeded to item No.1 of the schedule property by virtue of Ex.A-2 Will was illegally dispossessed by the defendants 1 and 2 and that the plaintiff approached the trial Court for seeking the relief of possession of the schedule property.

25. It was contended by the learned counsel for respondents that as per the evidence attestors, original link documents were given to the propounder of the Will, therefore, the alleged Will is doubtful.

26. In the case of Kavita Kanwar v. Mrs. Pamela Mehta^, which was relied on by the learned counsel for respondents, wherein the Apex Court held as follows: “The Will in question cannot be viewed with suspicion .only because the plaintiff had played an active role in execution thereof though she is the major beneficiary: or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the plaintiff or only because one of the attesting witnesses being acquaintance of the plaintiff or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluded passages by the testatrix in her own hand; or only because there is some discrepancy in the oral ^vidence led by the plaintiff; or only because of any other factor taken into account by the Courts or relied upon by the defendant.” ^ AIR 2020 SC 2614 1 -I 17 i VGKRJ. sa_42_2018 The learned counsel respondents placed reliance Balathandayutham v. Ezhilarasan^, wherein the Apex Court held as follows; “In a case where the testator’s mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the will is unnatural, improbable or unfair in’ the light of the circumstances or it appears that the bequest in the will is not the result of the testator’s free will and mind, the court may consider that the will in question is encircled by suspicious circumstances.” In the present case, both the attestors and scribe stated in evidence that the testator was in a sound and conscious state of mind at the time of execution of the Will and the testator also affixed his thumb mark on the Will. The propounder proved Ex.A-2 Will in accordance with law. The thumb mark of testator on the Will was undisputed by the defendants and they have not taken any steps to send Ex.A-2 Will to finger print expprt along with admitted thumb marks of the testator.

27. Section 63 of the Indian Succession Act prescribes the mode and method of proving the Will and going by the provisions under Section 68 of the Indian Evidence Act, though a Will shall not be used as evidence until one of the attesting witnesses is to be examined. It will be suffice to examine one of the attesting witnesses to prove the same. I may hasten to add and emphasize here that the well founded suspicious circumstances if made out by any contestant opposing the Will, concerned will shift the onus on the Will propounder of the satisfaction of the Court. to dispel In the case at han(^, the propounder has examined suspicious circumstances to two attestors to the Will, the contestants opposing the Will/defendants 1 and 3 entered into the witness-box as D.Ws.1 and 6 and made statements on oath that they are not having any enmity with tbe attestors and both are residents of their village. There can also be no dispute that the witnesses have signed the Will in the presence of the testator after he had executed the same. (2010) 5 see 770 18 VGKRJ. sa_42_2018

28. As seen from the material on record, evidently the trial Court had taken into account the entire evidence on record to conclude the legal requirements in terms of the provisions under Section 63 of the Indian Succession Act and under Section 68 of the Indian Evidence Act have been complied with by the plaintiff and ultimately held that the plaintiff had succeeded in proving the Will. When a finding of fact has been recorded by the trial Court mainly on appreciation of the oral evidence, it should not be lightly disturbed unless the approach of the trial Court in.appraisal of evidence is erroneous, contrary to well established principles of law or unreasonable.

29. The first appellate Court while exercising the power under Section 96 of C.P.C can re-do the exercise of the trial Court, however, such a power is expected to be exercised with caution. The reason being, the trial Court alone has the pleasure of seeing the demeanour of witnesses. Therefore, it has got its own advantage in assessing the statement of witnesses which may not be In exercising such a power, the appellate available to the appellate Cour^. Court has to keep in mind the views of the trial Court. If it finds that the trial Court is wrong, its decision should be on the reasoning given, substitution of views without discussing the findings of the trial Court, by the appellate Court is not permissible. It is also made clear that if two views A mere possible, it would only be appropriate to go with the view expressed by the trial Court. While adopting reasoning in support of its findings, the appellate Court But, the learned first appellate is not expected to go on moral grounds alone. Judge has not properly re-appreciated the evidence on record and came to * wrong conclusion that Ex.A-2 Will was not proved by the plaintiff. As stated supra, the plaintiff proved Ex.A-2 Will in accordance with law and the testator died on 22-11-2004 and that the plaintiff acquired ownership rights in item No.1 of the schedule property, which was bequeathed under Ex.A-2 valid Will by the testator/husband of 3'"'^ defendant. By virtue of Ex.A-2 Will, the plaintiff is having absolute rights in item No.1 of the schedule property from the date of 19 ( VGKR, J. sa 42 2018 death of the testator i.e. from 22-11-2004 onwards, on which date the Will came into force.

30. The case of plaintiff is that the 3^^ defendant having satisfied with the service rendered by him, out of love and affection, executed the registered gift deed, dated 11-02-2005, in respect of item No.2 of the schedule property, which was duly accepted and accordingly, the plaintiff has been in possession and enjoyment over item No.2 of the schedule property and the plaintiff was also given pattadar pass book and titJe deed pass book by the Revenue authorities in respect of item No.2 of the schedule property. Therefore, by virtue of Ex.A-19 registered gift settlement deed, the plaintiff is having valid right and title in item No.2 of the schedule property. Admittedly, 3'^'^ defendant/donor filed the suit O.S.No.27 of 2009 for cancellation of the said registered gift deed under Ex.A-19. The trial Court clubbed both the suits vide O.S.Nos.73 of 2006 (corresponding with the present appeal) and O.S.No.27 of 2009 and recorded common evidence and dismissed the suit O.S.No.27 of 2009 by holding that “Ex.A-19 gift deed is validly executed by the 3'"^ defendant and there is no need to cancel the said gift deed”. Ultimately, the suit filed by the 3*^ defendant herein vide O.S.No.27 of 2009 for cancellation of the said gift deed was dismissed by the trial Court. Admittedly, no appeal has been preferred by the 3^^ defendant herein i.e., the plaintiff in O.S.No.27 of 2009, therefore, the said finding reached its finality. During the pendency of second appeal, the 3"^^ defendant died issueless, the|-efore, by virtue of the valid gift deed, dated 11-02-2005 under Ex.A-19, the plaintiff herein is having total * absolute rights and title in item No.2 of the schedule property.

31. In the first appeal filed by the defendants, the first appellate Court allowed the first appeal and came to the wrong conclusion that without seeking the relief of declaration of title, simple suit for recovery of possession is not maintainable. It is undisputed by both the parties that Hanumantha Rao was having valid right and title in item No.1 of the schedule property, and 20 VGKR,j. sa_42_20l8 purchased the same under Ex.A-1 registered sale deed in the year 1979. As stated supra, the said Hanumantha Rad bequeathed item No.1 of the schedule property under Ex.A-2 Will and he died testate on 22-11-2004. But, the 1®^ defendant contended that he purchased item No.1 of the schedule under I Ex.A-1 sale deed, dated 13-5-2005. As seen from Ex.B-1, admittedly no sale consideration was passed under Ex.B-1. As per the recitals in Ex.B-1 sale deed, the 1®* defendant’s husband suffered from cancer, for treatment the vendor along with her husband made some debts and as such out of the sale consideration, to discharge the debt to Changalasetti Peda Srinu an amount of Rs.27,500/- has been paid by the vendor and to discharge the debt due to Sengalabandi Venkateswarlu, an amount of Rs.30,000/- was paid and the remaining amount was paid to discharge the debt to Patibandia Seetha Ramaiah. Whereas, the 1®‘ defendant/D.W.1 vendee under Ex.B-1 deposed that out of sale consideration of Rs.82,500/-, Rs.65,000/- was paid under Exs.B-2 to B-4 for discharge of the said debts and the remaining amount of cash was given to the 3'^^ defendant, which is quite contrary to the recitals of Ex.B-1 sale deed.

32. Exs.B-2 to B-4 are alleged discharge pronotes. Admittedly, Exs.B-2 and B-3 pronotes are executed by the 3*^^ defendant alone. In Ex.B-2, the 1®* defendant is a sole attestor and in Ex.B-3, th’ere are no attestors. The 1®* defendant examined the creditor under Ex.B-2 as D.W.2. According to D.W.2, the 3'"' defendant herself paid the entire amount and he made discharge endorsement on the reverse of Ex.B-2. According to D.W.2, he did not issue any notice to the 3^^* defendant claiming amount under Ex.B-2. The creditor under Ex.B-3 was not at all examined, therefore, the alleged discharge of Ex.B-3 is not at all proved. In Ex.B-2, the 1®* defendant is only the attestor. Therefore, for the aforesaid reasons, it is quite clear that the execution of Exs.B-2 and B-3 and discharge of amounts under Exs.B-2 and Furthermore, Ex.B-4 pronote is said to have been B-3 is highly doubtful. executed by both the 3'^'^ defendant and her husband on 03-10-2004, the I 21 VGKR,J. sa 42 2018 creditor under Ex.B-4 is also not examined as a witness by the defendants to prove that the debt under Ex.B-4 is a genuine one.

33. In Ex.B-1, it was recited that the 3'"^ defendant’s husband is having absolute rights Ex.B-1 property and he died intestate and that the 3'^^.defendant herein got absolute rights by way of succession in item No.1 of the schedule property, In Ex.B-1, it was recited that the entire sale consideration under Ex.B-1 is deemed to have been received by the vendor in view of the discharge of alleged Exs.B-2 to B-4 pronote debts. supra, the alleged discharge of Exs.B-2 to B-4 by the 1®* defendant is highly Therefore, the 1®* defendant is not doubtful and the same is not proved. As stated a bona fide purchaser in respect of item No.1 of the schedule property.

34. Admittedly, the plaintiff obtained pattadar pass book and title deed pass book in respect of item No.1 of the schedule by virtue of the Will Ex.A-2, dated 20-11-2004 and the plaintiff got absolute rights in item No.1 of the schedule property, after the death of testator i.e. from 22-11-2004 onwards, therefore, by the date of Ex.B-1, dated 13-5-2005, the 3"^ defendant is not having any right and -title in Ex.B-1 property in view of the valid testamentary disposition made by the 3"^ defendant’s husband in favour of the plaintiff herein. Therefore, since the 3'^^ defendant is not having any valid title in item No.1 of the schedule property, she cannot transfer any right under Ex.B-1 in item No.1 of the schedule property to the 1®‘ defendant. As stated supra. In Ex.B-1 it was recited that the sale consideration under Ex.B-1 is deemed to have been received by the vendor in view of the discharge of alleged Exs.B-2 to B-4 Therefore, the 1®^ defendant is not a bona fide purchaser in pronote debts. respect of item No.1 of the suit schedule property-

35. The 2"*^ defendant in this case is none other than the 1®* defendant’s son and the defendants 1 and 2 are residing together and they are immediate southern neighbours to the house of 3*^ defendant. According to the plaint averments, the plaintiff is residing at a distance of half kilometre from the 22 VGKR,j. sa_42_2018 house of 3 defendant and further, item Nos.1 and 2 of the schedule properties are contiguous plots. The case of the plaintiff is that after brought into existence of sale deeds in the year 2005, the defendants 1 and 2 removed the boundary stones to item No.2 of the schedule property in a high-handed manner and trespassed into th'e suit schedule property. The case of the plaintiff is that he requested the Mandal Surveyor to measure the land by paying requisite fee by way of challan, dated 22-6-2005 and that the Mandal Surveyor duly fixed the boundary stones again on 29-7-2005 and later, the defendants 1 and 2 high-handedly dispossessed the plaintiff from item Nos.1 and 2 of the schedule property and at present, the defendant 1 and 2 are in possession of item Nos.1 and 2 of the schedule property. As stated supra, the plaintiff is having valid right and title in item Nos.1 and 2 of the schedule property. The present suit was filed by the plaintiff on 01-9-2005 for seeking recovery of possession of item Nos.1 and 2 of the schedule property.

36. The learned counsel for respondents placed reliance on Anathula Sudhakar v. P. Buchi Reddy (pead) by L./?s®, wherein the Apex Court held as follows: “Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.” The learned counsel for respondents also relied on Nagar Palika v. Jagat Smgh^°, wherein a Full Bench of the Apex Court held as follows: “The onus to prove title to the property in question was on the plaintiff- respondent. The court of appeal without considering the question whether plaintiff-respondent had proved his to the property in dispute proceeded to examine whether the respondent was in possession thereof. ® AIR 2008 SC 2033 (1995) 3 see 426 10 'I i 23 VGKRJ. sa_42 2018 In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the respondent. The court of appeal never inquired or investigated that question which was at issue saying that the title of the plaintiff-respondent was admitted by the appellant. This was a serious error of record. The title and possession of the respondent had always been disputed by the appellant frbm the stage of the written statement.” The ratio laid down in the aforesaid case laws is applicable to a simple suit for prohibitory injunction. In the case at hand, the plaintiff proved his title by virtue of Ex.A-2 Will and also Ex.A-19 registered gift deed. As stated supra, the plaintiff is having valid title in item Nos’l and 2 of the plaint schedule property by virtue of Exs.A-2 and A-19 documents.

37. The learned counsel for respondents also placed reliance on Vinay Krishna v. Keshav Chandra^\ The ratio laid down in the aforesaid case law relates to declaration suit filed by the plaintiff.

38. The learned counsel for respondents relied on Union of india v. Vasavi Co-op. Housing Society Ltd. 12 wherein the Apex Court held as follows: “The plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up t by the defendants is found against, in the absence of establishment of plaintiff’s,own title, plaintiff must be non-suited.” The learned counsel for respondents also placed reliance on G. Anand V. G. Suryanarayana Murthy^^, wherein a learned single Judge of the High Court for the State of Telangana at Hyderabad held as follows: