GOPAVARAM NAGAFAKSHMAMMA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This is yet another case, I am coming across, disposed off by the Chairman of the Land Reforms Appellate Tribunal, Kurnool in which a finding of fact is recorded without discussing the oral evidence on record and with a factually incorrect observation that no evidence whatsoever has been let in; for as many as five witnesses were examined in support of the plea that certain property was bequeathed by Subbamma in favour of Eshwaramma the petitioner in C.R.P. 1246 of 1977.

(2.) These two C.R.Ps. are directed against the order of the Land Reforms Appellate Tribunal, Kurnool, in L.R.A. 361/1976. C.R.P. 1245/1977 is by one Naga Lakshmamma, the declarant in C.C. 265/ NDL/75 on the file of the Land Reforms Tribunal, Nandyal. Nagalakshmamma is the daughter of Subbamma. C.R.P. 1246/1977 is by Eshwaramma the objector in the above C.C. It was the case of Eshwaramma the objector that Nagalakshmamma's mother Subbamma had executed a will on 16-1-1972 bequeathing an extent of Ac. 6-03 cents comprised in S.No. 281/3 and that Subbamma had died in the year 1973. In support of the will, Eshwaramma examined herself as D.W.I. She examined the scribe D.W. 2 and the two attestors as D.Ws. 3 and 4. She also examined Nagalakshmamma as D.W. 5 The original Tribunal did not accept the will to be true and included this extent in the holding of Nagalakshmamma and rejected the objection petition. Both Nagalakshmamma and Eshwaramma carried the matter in appeal before the appellate Tribunal. The Appellate Tribunal, as stated above, under a gross misconception that no evidence whatsoever was adduced to prove the will, held that it is not true. It also observed:- "the very appearance of the will is suspicious and it seems to have been fabricated". I have examined the will which is dated 16-4-1972. It was produced before the original Tribunal on 13-1-1976 i.e., within less than four years of its being executed. I do not find anything intrinsically suspicious abouithat document. The Chairman of the Appellate Tribunal has not pointed out how the appearance of the will raised any suspicion in his mind as to its being fabricated. It is not such an old document so as to give out even by its appearance that it was brought into existence recently for the purpose of this case. A document executed in 1972 and produced in 1976 could not by its very appearance disclose any suspicious circumstances to warrant the finding that it appears to have been fabricated.

(3.) The evidence of Eshwaramma is clear and cogent. She is no other than the daughter of the testator's sister. She deposed that the will was executed in a sound and disposing state of mindIt was executed in Pandurangapuram in the presence of the attestors. The lands were in her possession and management ever since the death of Subbamma in 1973. She also deposed that her husband had paid land revenue in 1974 and that the receipt is with him. The scribe deposed that he wrote the will as per the instructions of Subbamma and that she executed it in a sound state of mind. He denied the suggestion that it was brought into existence subsequently. The attestor D.W. 3 deposed that Venkata Subbamma executed Ex.B 1 will in his presence, she affixed her thumb impression and that he himself was the attestor. He denied that the will was brought into existence subsequently. The evidence of the other attestor D.W.4 is to the same effect. Naga Lakshmamma the daughter of Subbamma, who was entitled to succeed to the property in the absence of the will, has also deposed that her mother had executed the will. Nothing is elicited in the very cursory cross-examination of these witnesses so as to render their evidence adduced in support of the will unworthy of credence. No evidence whatsoever is adduced in rebuttal. The observation of the appellate Tribunal that the will was not acted upon has no basis. Both Lakshmamma and Eshwaramma as well as D.W.4 deposed that Eshwaramma is in possession of the property ever since the death of the testator in 1973. That apart the will does not become ineffective merely because it was not acted upon after the death of the testator. The interval between the date of the death of the testator and the date of the declaration is hardly three years. Within this period of three years no one else could have acquired title by adverse possession as against Eshwaramma who became entitled under the will. In this state of evidence the finding of the appellate Tribunal that the will is not proved is perverse and cannot be sustained.