P SIVAIAH Vs. TEKCHAND

JUDGEMENT

(1.) THIS second appeal is filed by the plaintiffs whose suit has been dismissed by the Second Additional Chief Judge, City Civil Court, Hyderabad, through his judgment dated 30th. November, 1962. The necessary facts in order to appreciate the contentions raited be fora me may be briefly stated : Plaintiff No. 1 claimed himself to be the illatom-son-in-law of one Nagiah who died (raving the suit property. Plaintiff No. 2 is his daughter married to (he 1st. plaintiff; and plaintiff No. 3 is the sou of the first two plaintiffs It wait alleged inter alia in the plaint that Nagiah was ths owner of the property. He died on 5-11-1951 leaving the plaintiffs as hii heirs. The deceased before he died made a will under which he gave his entire movable and immovable properties to the plaintiffs. It was denied in the plaint that Bthirajamma 1st. defendant was the legally wedded wife of Nagaiah. It was also alleged that she was a concubine kept by Nagaiah but ahe was leading an unchaste life. Under the will the plaintiffs claimed the property. It was stated that the second defendant had instituted a suit for specific performance of aa agreement to sell alleged to have been entered into by Nagaiah. la that suit Nagiah had pleaded that there was no agreement executed by him and that it was a forgery. The trial court after recording the evidence had dismissed the second defendant's suit holding that the agreemene was a forgery. The second defendant therefore preferred an appeal in the High Court. During the pendency of the appeal, Nagaiah died, and there was dispute as to who should be brought on record as the L, Rs. of Nagaiah. Both the 1st. defendant as well as the plaintiffs applied. Ultimately however, the High Court brought the lit. defendant on record as the L. R. of Nagaiah and rejected the application filed by the plaintiffs. After Ethirajamma was brought on record as the L. R. of the deceased Nagaiah she seems to have entered into a compromise with Tekohand defendant No. 2 whereby she agreed that her late husband had received Rs. l5,000/-towards part payment of the sale agreement and that she had no objection if the sale deed is executed in pursuance of the said agreement. On the basis of that compromise the High Court decreed the second defendant's suit for specific performance. The plaintiffs in this case now alleged that that decree based on compromise is aot binding on the plaintiffs as that vitiated by fraud. Ethirajamma remained exparte. It is the second defendant who railed various pleas. He alleged that trie will was a forged one and that Nagaiah has not left any such will; nor the plaintiffs get the property under any such will. It was also stated that Ethirajamma was the legally wedded wife of Nagaiah ; that plaintiff No. I is not the iliatorn son-in-law of Nagaiah although it was admitted that the 2nd. plaintiff is the daughlher of Nagaiah tarried to the first plaintiff, third plaintiff being their son. It was denied that the compromise was brought about by any fraud practised on the Court. Upon these pleading! the trial court framed teveral issues and after reeording the evidence of the parties decreed the plaintiff's suit, it was held by the trial Court that Nagaiah left the Will in question bequeathing the suit property to the plaintiffs. It was however, held that Ethirajamma is the legally wedded wife of Nagaiah and that the 1st plaintiff ii not the illatom sonin-law of Nagiah. It was also found by the trial court that the decree obtained by the second defendant against the 1st defendant in his suit in vitiated by fraud. Agrieved by that judgment the second defendant carried the matter in appeal before the 2nd. Addl Chief Judge, City Civil Court, Hyderabad, His appeal was allowed. The learned 2nd. Additional Chief Judge reverting the Judgment of the trial Court held that the will seems to have been brought up by the plaintiffs and is not a genuine one. It was alto found that the compromise decree obtained by the Second defendant if not vitiated by fraud. The learned Judge eoneurred with the opinion of the trial Court that the 1st plaintiff is not the illatom son-in-law and that the 1st defendant is the legally wedded wife of Nagaiah. Ii is this view of the learned 2nd. Additional Chief Judge that ii now assailed in this 2nd. appeal. Two contentions are raised before me by Mr. Y. Satyanarayana the iearnedcounsel for the appellants. It was firstly urged that the lower appellate Geuri has erred in attaching greater importance to suspicious circumstance8 and ignoring thr evidence of the scribe and the attesting witness produced to prove the execution of the will. Secondly it was contended that the compromise decree it vitiated by fraud practised on the High Court in obtaining decree on the basil of the compromise. In order to appreciate the first contention it is necessary to keep in view certain welt recognised principles in regard to the proof of a will. As regards the onus in cases of wills the rules are quite clear The first rule is that the onui probandi lies in every case upon the party propounding a will. He must satisfy the conscience of theCourt that the instrument so propounded is the lasr will of a free a ad capable testator. The Second rule is that it a party wriiei or proposes a will under which he takes the benefit or it any other nces exist which excite suspicion of the Court and whatever their nature may be, it is for those who propound the will, to remove such suspicion and tit prove the factor that the testator knew and appraised the contents of the will and it ii only where this is done that the onus is thrown on those who oppose the wili to prove fraud or undue influence or whatever they rely upon to displace the case for proving the will. The above Hid two principles have been laid down by tkeir Lordships of the Privy Council in Harmes v. Hinkson l. Theic principles have received the seal of approbation of the Supreme Court in H- Vtnkttachilav B. N. Thimmtjamma '. It is perhaps profitable to refer to some of the relevant paragraphs, of the judgment of the Supreme Court. At page 452 their Lordships observed:

(2.) ANDIIN the context means the stale of'owninjg or haying in one's hand or power."