NARKULLA VENKAYYA Vs. NOONA SATYANARAYANA

JUDGEMENT

(1.) All the three appeals and the revision petition which are before us arise out of a suit brought by the minor plaintiffs against Narukula Venkayya and his wife Rangamma in the Zilla Court, Warangal. These plaintiffs are the grandsons of one Nuna Ramayya. who died leaving surviving him widow Nagamma and a son by the first wife, Venkayya, the father of the plaintiffs. It is common ground that after his marriage with Nagamma, Ramayya became separate from his son both in residence and food and that they used to cultivate their lands separately. According to the defendants, this was in consequence of partition between the father and the son. This position is not accepted by the plaintiffs who attribute it to mere administrative convenience, but their previous plaint filed in the Madhira Court through their maternal grand-father contains clear admission to that effect. As Nagamma had no issue she brought up her sisters daughter. Rangamma, defendant No. 2, and got her married to 1st defendant. Both the defendants were living with her during the life-time of Ramayya. After the death of Ramayya which took place two years prior to the death of plaintiffs father, Nagamma was found in possession of the property left by Rarnayya. She however died in 1351 F. Plaintiffs claim that they got into possession of the immovable property thereafter but were subsequently dispossessed by defendants 1 and 2. This the defendants do not admit. Their contention is that Ramayya during his lifetime gifted away his properly, which included a moiety of what was once the ancestral property, to Nagamma under a registered gift deed in the year 1343 F. From that time onwards Nagamma was in possession of the gift property. She executed a with of the same in favour of defendants 1 and 2 as a result of which defendants as legatees and defendant No. 1 also as the illation son-in-law of Ramayya acquired an indefeasible right and continued in possession of the property. Their further contention is that the schedules of : moveable property filed by the plaintiffs are not correct. Plaintiffs categorically deny the factum of gift made by Ramayya and the testamentary disposition of Nagamma and her competence to make the: same. They claim the suit property as the surviving copartners or heirs of Rarnayya and also in the alternative as the nearest heirs of Nagamma herself. On these pleadings, eleven issues were settled. The trial Court found that the gift in favour of Nagamma was fully proved but not her will and as no title could pass to any of the defendants on that account the learned Judge decreed the claim of the plaintiffs. The First Appellate Court however modified the decree in relation to mesne profits and disallowed the claim to movables which according to it was not established. Aggrieved by this decree both the parties have come in appeal, the defendants appeal being S. A. No. 558/50 and that of the plaintiffs" being S. A. No. 64/51, The contest between the parties does not end at this. The plaintiffs in schedule A committed two mistakes. One is a mistake as to the area and the other as to the survey number. An area of Ac, 33 1/2 instead of S3 1/2 guntas was-entered in relation to S. No. 526/3 and Survey No. 524/4 instead of survey No. 529/4 was wrongly entered in the schedule A and these mistakes were obvious from the gift deed relied on by the defendants themselves. These being accidental slips the trial Court, on the application of the plaintiffs ordered correction and the necessary amendment in the decree. As a result the defendants have come in revision which is No. 264/4/51-52. There is another appeal preferred by the defendants and this is directed against the order passed in relation to mesne profits and this appeal is 107/3/51. This judgment will govern all these proceedings.

(2.) Appeals S. A. Nos. 558/50 and 64/51 involve only questions of fact on which both the Courts below are concurrent to a great extent. Such appeals would have been incompetent had it not been for the provisions of Section 602 of the Hyderabad Civil Procedure Code which governs them. That Section permits Second Appeals even on questions of fact. We have therefore to examine how far on a review of evidence the findings of the Courts below can be sustained.

(3.) Though several points were raised in the memorandum of appeals the learned counsel confined their arguments only to issues other than issues Nos. 1 and 3 to 5. Out of these the issue No. 6 is the vital issue on which the fate of the defendants appeal mainly rests. It relates to will and the dispute primarily centres round the question of its execution. The defendants examined D. Ws. 2 to 9, 16 and 18 in support of the will and the plaintiffs in rebuttal have relied on the sworn testimony of P. Ws. 3, 4, 7 and 9. It is no doubt true that this will is not produced for the first time in this suit. It was referred to in the written statement filed in a previous suit relating to the same property brought by the plaintiffs in the Madira Court and was actually filed there on 31-7-1351 F. within a short period after Nagammas death. But that circumstance alone does not absolve the defendants from the necessity of proving that the said will is true and was executed by a tree and capable testator. It is manifest that the will is propounded by defendants who get full benefit thereunder to the exclusion of the plaintiffs who in the natural course of events ought to be entitled to the entire estate. The plaintiffs have categorically denied the will. In the circumstances the Courts will indeed demand strict and clear proof of the genuineness of the will and disposing state of mind of the testator. The question of genuineness of course would depend not only on the assertions of the witnesses but also upon the surrounding circumstances and facts admitted or proved. As a matter of fact the veracity of witnesses will be tested by reference to such facts. The onus probandi however lies on the defendants to show that the will is natural and in full accord with the feelings, sentiments and tenor of the life of the testator and that it is her last will. Both the elements are essential to be established before the party can hope to get a decision in its favour. That a will is reasonable or proper in terms or even that it expresses natural inclinations or desires of the alleged testator, is, by itself no answer or defence for the contention that its execution is not proved. In the absence of satisfactory proof of. its execution, the authorship of a will cannot be presumed in law by mere terms of the will. The law is that in order to be effective it should be the last will of a free and capable testator. The reasonableness of the terms may be a favourable circumstance but only to show that there can be no suspicion inherent in the transaction and that the disposition is such as is likely to be made by the testator. But this does not displace the proof of execution. That has to be proved as any other fact. The standard of proof required in the criminal case may not be applicable. Certainly the standard is not an absolute or conclusive one. It is only that of a prudent man. The Court should be of opinion that under the circumstances, a man of ordinary prudence can act in the belief that the document is executed by the testator. As already observed the veracity of the statements of the witnesses should be tested in view of the surrounding circumstances. A further duty is cast on a court of appeal not to lightly disregard the view of the credence taken by the trial Court where the simple question is which set of witnesses is to be believed. With these principles in view, we proceed to consider the evidence on record. (After discussion of the evidence, the judgment proceeds as follows:) Thus this defendants have not only failed to establish affirmatively the execution of the will deed by Nagamma but also there is sufficient material on record to discredit such a story. Both the Courts below have expressed the same opinion. We see no strong grounds to differ from that view. There is no force in the argument that the discrepancies are minor and that they are merely the outcome of lapse of memory or inattention to details. We are firmly of the view that they are material an3 expose the falsity of the defendants story. Great stress has been laid on the balance of probabilities. It is argued that since 1st defendant was her own sisters daughter to whom the deceased was greatly attached and even got her marriage celebrated and both the defendants were living with her till the last breath of her life, it is highly probable that they became the proper object of her bounty and the will should therefore be regarded as genuine. It is argued on that basis that notwithstanding the material discrepancies in the statements of the witnesses, the will must be given effect to. We find no force in this argument either. Apart from the fact that the probabilities are not at all conclusively in favour of the defendants, we are not prepared to agree with the proposition that the alleged will can operate as valid will even though its contents were unknown to the deceased and she had not approved of the same. Merely because its terms appear to be reasonable a document purporting to be a will deed cannot without due proof of its execution operate as a valid will.