K SURYANARAYANAMMA Vs. A SANYASAMMA ALIAS DHARMAWATHI

JUDGEMENT

(1.) The dispute in the appeal is between a brother and a sister. The dispute relates a house bearing No. 31-9-68 at Allipuram in Visakhapatnam town. Their father died in 1959. Their mother died on February 24, 1965. The brother died, pending the suit. The sister was married on March 16,1961. The brother, in his life time, mortgaged the suit house twice, once on March 3, 1961 under Ex. B-3; the second time, on April 8, 1965 under Ex. B-4. Later, on May 19,1967, he sold the house under a registered sale deed, Ex. B-5 in fovour of one Karri Suryanarayanamma for Rs. 25,000/-. Thereupon, the sister laid the suit on March 3, 1969 claming she is entitled to half share in the suit house and impleaded the vendee in Ex.B-5 in the suit. The brother and the vendee both, in answtr to the suit claimed absolute title in the brother under the will of the father executed on August 10, 1958. This deftnce was rejected at the trial. The suit was decreed and a preliminary decree was passed by the llnd Addl. District Judge, Visakhapatnam on July 31, 1975. The instant appeal is lodged by the vendee against the preliminary decree in Ex.B-5.

(2.) The principal issue raised in the appeal is as to the meaning and interpretation of the testament of the father. Before that question is adverted to, one or two aspects may be mentioned. In the suit, the sister, inter alia, alleged the sale of the house was fraudulent and consideration paid under Ex.B-5 in Rs. 25, 000/- was inadequate. This plea, as of fact was held against her. The consideration of Rs. 25000/- it was held, was not inadequate. The transaction was found a bona fide sale. This finding is not challenged in the appeal. The next plea with reference to proof of the father's will, Ex.B-2. In the instant suit, a copy of the will was obtained by the sister from the records of H.R.C. 40/1968 on the file of the Prl. District Munsif, Visakhapatnam and was lodged along with the plaint. The copy of the will was marked, Ex.B-2. In the plaint Ex. B-2 was referred as the will of her father. The brother in answer relied on Ex.B-2 as his father's will and contested the suit. At the trial, no attestors who subscribed the original will, were examined. One of the questions that was considered by the trial Court was whether the attestors were necessary in proof of the will, notwithstanding the admissions of the contestants. This question was considered under the provisions of the Indian SUCCESSION ACT, 1925 39 of 1925 and the Indian Evidence Act I of 1872. It was held, no attestors were examined, therefore, the will was not held proved. The trial Court, however, while considering the other issues relating to interpretation of Ex. B-2 relied on the will. In this appeal, a faint attempt at the inception of the hearing was made by the Counsel for the sister to argue, the will of the father is not proved by production of Ex.B-2. That point, however was not pressed later. It is seen, the brother and sister, both relied on Ex.2 in the pleadings and in their evidence as the will of their father. Their common case was, their father executed the original of Ex. B-2 will. It is true, they are at variance as to the meaning and interpretation of recitals of the will but the truth of the will or its existence was never in dispute, therefore, the issue of proof need not be adverted in this case, though attestors were not examined at the trial.

(3.) The question at issue in the appeal is as to the meaning of the following two paras, contained in the will. The two relevant recitals in the will read as under (The original is in Telugu)