PEDDIRAJU Vs. P VISWANADHARAJU

JUDGEMENT

(1.) The plaintiff who is the brother of late Subba Raju filed a suit for partition of the plaint schedule properties and for allotment of l/5th share to him and for delivery of possession after ejecting the defendants and for mesne profits. Excepting the defendants 6 and 7 no other defendant contested the suit and on the other hand they supported the version of the plaintiff. D-7 is the natural son of D-6 and adopted son of late Subba Raju. The plaintiff relied upon Ex. A-1, a will said to be executed by late Subba Raju and D-6 & D-7 relied upon Ex. B-1, a unregistered will and also Ex, B-6I, another will said to have been executed by Venkayamma, wife of late Subba Raju. The trial Court as well as the appellate Court found that late Subba Raju was fond of D-7 and he brought him up and he admitted D-7 in the Deaf and Dumb School at Kakinada and accepted the documentary evidence, Exs. B-7 to B-47 to show that late Subba Raja was affectionate towards D-7. With regard to the execution of Ex. A-l and Ex. B-1, the learned Subordinate Judge found that Ex. A-l is not a genuine document and it was prepared with the signatures available on the blank papers by P. W-1 at the instance of the attestors and P.W-4 With regard to Ex. B-1, it was found that the evidence of D Ws. 8 and II is not consistent regarding the plea of attestation etc., and came to the conclusion that though the genuineness is not denied, Ex. B-l was not proved in accordance with law. The other document Ex. B-61, said to have been executed by Venkayamma, wife of Late Subba Raju is not accepted as it has not been filed at the relevant point of time. With regard to the adoption, both the Courts below came to the concludion that the boy is aged about 21 years at the time of adoption and so the adoption of a boy aged above 15 years is bad and therefore, the registration of the adoption deed will not cure the defect, and the adoption also is not correct as the parties have not pleaded either the custom or usage raised by them. Against (his concurrent finding of fact by the two lower Courts, this second appeal has been filed by D-6 and D-7.

(2.) It is an admitted case that late Subba Raju died on 2-12-1972 leaving behind him his wife and D-7. It is also an admitted case that Venkayamma, wife of late Subba Raju died. Late Subba Raju has got brothers and separated from his brothers and himself and his wife are living separately and there was no cordial relationship between Subba Raju and his brothers. Thereafter, Subba Raju developed attachment towards the wife of D-6 and mother of D-7 and the circumstance of executing a registered adoption deed in favour of D-7 indicates about the preference that has been exhibited by late Subba Raju and his wife towards D-6 and D-7 and it appears to be correct. But while considering the documentary evidence, we have to consider whether a case has been made out by them or not. The plaintiff sets up the will Ex. A-l and it is found from the infitmities that have been pointed out in the evidence of the attestors and the scribe that it is not a genuine document. On a reading of the evidence on record it is clear that it is highly improbable for late Subba Rao to execute the document like Ex. A-l and keep the same in the custody of P.W-4. The insolvency proceedings and the promissory note also have to be taken into consideration in this connection. Ex. A-l is not a genuine document and the reasons that have been given by the two Courts below that it was brought into existence with the aid of blank papers with the signatures available is correct.

(3.) So far as Ex. B-1 is concerned, the learned counsel for the appellant herein argued that merely because the document is admitted as having been executed by late Subba Raju, it cannot be said that the document has been accepted. By mere admission of a will, it cannot be said that it has been proved. But in this case, in Ex. A-l, a mention has been made about Ex. B-1. D.W. 8 and P. W-2 are the attestors of Ex. B-l but there is doubt about the place and time of its execution. Both the Courts below have scrutinised the evidence that has been adduced by the parties and both Courts have come to the conclusion that Ex. B-l was not proved.