KESARAPU MANIKYALU Vs. VENNA PERUMALLAYYA DIED

JUDGEMENT

(1.) This is an appeal preferred by the first defendant being aggrieved by the judgment and decree dated 15th December, 1984 passed by the Principal Subordinate Judge, Kakinada on his file AS No. 103 of 1979. By the impugned judgment and decree the lower appellate Court set aside the judgment and decree of the I Additional District Munsif of Kakinada dated 12th December, 1978 passed on his file in OS No. 175 of 1972 and consequently decreed the plaintiffs suit as prayed for by allowing the appeal.

(2.) The learned Counsel appearing for the appellant-first defendant contended that the appellate Court has erred in raising presumption in favour of will dated 17-5-1944 filed in the suit at Ex.A2, under Section 90 of the Evidence Act. He further contended that unless one of the attesting witnesses is examined, the will could not be proved and in such a case no presumption can be raised under Section 90 of the Evidence Act and accordingly he submitted that the appellate Court has erred in decreeding the plaintiffs suit. He further submitted that according to the evidence of PWs.1 and 2 attestors numbers 1 and 2 by name Borra Tamanna and Koppana Satyam have died, but there is a 3rd attestor by name Borra Venkata Raidu, But according to the evidence of PW2 his whereabouts are not known and said Borra Venkata Raidu is not yet dead. Therefore, the said person could have been examined and without examining such a witness no presumption can be raised under Section 90 of the Evidence Act, having regard to the requirements of Section 68 of the Evidence Act. Therefore, the findings of the appellate Court based on the will Ex.A2 are liable to be set aside. On the other hand, the Counsel appearing for the respondents plaintiff contended that the person by name Borra Venkata Raidu in fact was not one of the attesting witnesses and even otherwise his whereabouts are not known as deposed by the witness and in such circumstances his non-examination would not effect merits of the case. He further submitted that since document is of 30 years old a presumption could be raised in favour of the document Ex.A2 and the appellate Court having regafd to the presumption raised in favour of the will and also evidence on the side of the plaintiff has rightly dismissed the suit and this Court cannot interfere with such finding of fact under Section 100 of Code of Civil Procedure and accordingly he submitted that there are no merits in appeal and the same is liable to be dismissed.

(3.) In order to appreciate rival contentions, I have to note brief facts of this case. The plaintiffs numbers in 1 to 4 are the sons of one late Vennapu China Gurayya and defendants are the neighbours of the suit property and the suit schedule house originally belonged to Medidi Sooramma and her two sons. They have sold this property to one Smt. Koorakula Atchayyamma vide Ex.A1 dated 2-5-1926 and said Atchayyamma in turn has executed a registered will dated 17-5-1944 vide Ex.A2 in favour of the plaintiffs and accordingly the plaintiffs were put in possession of the property. But, in the year 1970 when the plaintiffs were away the defendants have constructed the brick walls and put up thatched pandal for using the same as cattle shed, but they did not have any right, title and interest to do so and as such their possession is illegal and consequently they are liable to be evicted by putting the plaintiffs in possession. Therefore, the plaintiffs have filed this present suit for possession. The first defendant filed written statement denying the case of the plaintiffs. It is further contended that the alleged will is not genuine and not binding. The first defendant stated that the suit property was purchased under the registered sale deed dated 5-7-1967 from the third defendant and his son and constructed the compound wall in the year 1971 by spending an amount of Rs.2,000/- and from 1971 the first defendant has been in possession and enjoyment of the property as owner. Therefore, the plaintiffs suit is liable to be dismissed. D2 filed a separate written statement contending that D2 and D3 are the divided brothers in the partition, taken place about 10 years back and the suit schedule property had fallen to the share of defendants Nos.2 and 3. But, later they came to know that the property belonged to the plaintiffs and after the death of Atchayyamma the suit schedule property was acquired by the plaintiffs' father under the will executed by her. D3 filed a separate memo adopting the written statement of D1. In support of their case plaintiffs examined three witnesses as PWs.1 to 3 and got marked Exs.A1 to A3. On the side of the defendants, DW1 to DW4 were examined and documents Ex.Bl was marked. On the appreciation of the entire evidence on record, the trial Court dismissed the suit holding that the will Ex.A2 is not proved in accordance with law since one of the witness by name Borra Venkata Raidu was not examined by the plaintiffs and the document is not proved in accordance with Section 68 of the Evidence Act, under which at lease one attesting witnesses shall be examined to prove the execution of the document. Even though, the document is of 30 years old a presumption could not be raised because Borra Tamanna was alive and was not examined. Accordingly, it held that will was not proved and consequently dismissed the suit. On appeal the appellate Court held that even though one attesting witnesses was not examined in terms of Section 68 of the Evidence Act, an exception is created in favour of the document which is of 30 years old under Section 90 of the Evidence Act, and in view of the presumption arising in favour of the Ex.A2 will it cannot be said that the Ex.A2 is not proved on the basis of the evidence on record more so when the will has come from the proper custody and it was not the case of the defendants that the attestor was not in sound and disposing state of mind. The appellate Court further held that non-examination of Borra Venkata Raidu is not fatal to the case since according to the evidence of PW2 his whereabouts were not known and in view of the presumption arising under Section 90 of the Evidence Act in favour of Ex.A2, it cannot be said that Ex.A2 is not proved. The appellate Court took into consideration that the will in question was also registered will and consequently decreed the suit. It is in these circumstances, the first defendant has approached this Court.