BHEEMAVARAPU SREERAMULU Vs. BHIMAVARAPU PUSHPAVATAMMA

JUDGEMENT

(1.) The plaintiff, Bhimavarapu Parasuramareddi, in O.S. No. III of 1959 on the file of the District Munsif's Court, Vijayawada, was the son of Bhimavarapu Sreeramulu, the 1st defendant in the suit. The 2nd defendant, Bhimavarapu Venkata Subbamma, was the third wife of the 1st defendant. The plaintiff was the son by the 1st defendant's first wife. The plaintiff's mother died when he was three years old. Subsequently, the 1st defendant married one Anjamma. Then, at the instance of the plaintiff's maternal uncle, the plaintiff become divided from his father, the 1st defendant under the partition deed dated 13th May, 1935. This suit was for a declaration of the plaintiff's title to the building shown as A B C D in the plaint plan and the site appertaining thereto and for recovery of exclusive possession of rooms shown as .AT and y in the said house after evicting the defendants, who were his father and his step-mother. The plaintiff's case was that the sites on which the building was constructed were purchased by himself and his grandmother, Mahalakshmamma under sale deeds, Exhibits A-16 and B-6 dated 3rd November, 1943, and 1st November, 1943, respectively. Thereafter, the house was constructed on the said site. On 31st May, 1945, the plaintiff's paternal grandmother, Mahalakshmamma executed a registered will bequeathing all her properties to the plaintiff. In the year 1954, Mahalakshmamma and the plaintiff pooled their resources and jointly constructed a terraced building shown as A B C D in the plaint plan at the cost of Rs. 6,000. Mahalakshmamma died on 12th March, 1956, and her entire estate devolved on the plaintiff. As the 1st defendant assisted Mahalakshmamma and the plaintiff in the construction of the house and as he is the plaintiff's father, the plaintiff allowed him to occupy a portion of the house shown as X in the plaint plan as licensee till such time as the plaintiff married. The plaintiff married in the year 1957 and his wife joined him in 1958. But the 1st defendant did not vacate the room. Hence this suit is filed. The 1st defendant denied the allegations in the plaint and claimed that the sale deeds, Exhibit A-16 and B-6 were benami for himself. The 1st defendant himself borrowed monies for the construction and the suit house was constructed on the site in the name of the plaintiff, the 1st defendant and his mother. It was further pleaded that the will in favour of the plaintiff executed by Mahalakshmamma does not confer any rights on the plaintiff in respect of the suit house, which was constructed after the execution of the will and therefore, in any view, the suit house passe d to the 1st defendant after the death of Mahalakshmamma under law. Both the Courts below decreed the suit. They found that the two sale deeds, Exhibits A-16 and B-6 were not benami for the 1st defendant. They also found that the original of the will, Exhibit A-15 was executed by Mahalakshmamma in a sound and disposing state of mind and that her interest in the site purchased under Exhibit B-6 and the house constructed on the two sites covered by Exhibits A-16 and B-6 passed under the original of the will Exhibit A-15 to the plaintiff. On those findings, the suit was decreed declaring the plaintiff's title to the suit house and directing recovery of the possession of rooms X and T therein after evicting the defendants therefrom and restraining the defendants from interfering with the plaintiff's possession of the suit building thereafter. Pending the appeal to the lower appellate Court the plaintiff died and his wife was brought on record as his legal representative. She is the sole respondent in this second appeal. It is first argued by Mr. Narayana Rao, the learned Counsel for the appellants that there is no evidence in thi s case that late Mahalakshmamma executed the original of the will, Exhibit A-15 in a sound and disposing state of mind. The argument is that the will should have been proved by the evidence of one of the attesting witnesses at least; but in the present case, D.W. 5, who, it is said, was one of the attestors, would not say that he attested the will. Section 68 of the Indian Evidence Act requires that, if a document is got to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. No doubt, the proviso to the said section stated that is shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. But it is clear that the proviso does not apply to the original of Exhibit A-15, which is a will. But the attesting witness is called in the present case and he is D.W. 5. Though he was called by the defendants and though he does not prove the execution or the attestation, still in my view, the requirements of section 68 are complied with. The learned Subordinate Judge holds that the original of Exhibit A-15 is proved by another witness, P.W. 5. It may be noticed that there is no specific issue on the point framed by the trial Court. It appears that this point was argued in the lower appellate Court; but in my view, there is no substance in this objection. It is next argued by Mr. Narayana Rao that the bequest of Mahalakshmamma's site in favour of the plaintiff cannot take effect for the reason that the site has been converted into property of a different kind by reason of a building being constructed thereon. In other words, it is contended that the said legacy is a deemed under section 152 of the Indian Succession Act.

(2.) In any view, it is next argued by Mr. Narayana Rao that, under the will, only the site purchased by Mahalakshmamma under Exhibit B-6 was specifically bequeathed to the plaintiff and that there is no clause in the will bequeathing the residue of the estate to the plaintiff. Therefore it is contended that, under law, Mahalakshmamma's interest in the house devolved on her son, the 1st defendant as her heir and not on the plaintiff under the will. To decide this question, it is necessary to refer to the will itself, which is as follows;

(3.) It is seen that the property that was bequeathed under this will is specifically described and the expression "the whole of the property " refers only to the whole of the property mentioned in the schedule and not to the whole of the property which Mahalakshmamma might die possessed of or which she had at the time of her death. On a plain reading of the will, I hold that Mr. Narayana Rao is right in his contention that what was bequeathed was only the property specifically described in the schedule and nothing more and that Mahalakshmamma's share in the house, which was admittedly constructed long after the execution of the will, was not bequeathed. Therefore, the question arises whether Mahalakshmamma's share in the subsequently constructed house also passed to the plaintiff under the will. Mr. Bhimaraju, the learned Counsel for the respondent, relied upon section 90 of the Indian Succession Act and argued that Mahalakshmamma's interest in the house also passed to the plaintiff though it is a subsequent acquisition. Section 90 of the Indian Succession Act reads as follows;