Metpalli Muthai Vs Metpalli Lasum Bai and Other - Citation 1123280 - Court Judgment

Judgment:

HONOURABLE Dr.

JUSTICE B.SIVA SANKARA RAO APPEAL SUIT No.178 of 1995 23-01-2014 Metpalli Muthaiah....Appellant Metpalli Lasum Bai and others...Respondents Counsel for the Appellant : Sr.M.V.S.Suresh Kumar Counsel for the Respondents:Sr.V.Manohar Rao, Sr.T.S.Anand, Sr.S.Chandrasekhar : : ?.Cases referred: HONOURABLE Dr.

JUSTICE B.SIVA SANKARA RAO APPEAL SUIT No.178 OF1995

JUDGMENT

: This appeal is filed by defendant Nos.1 and 2 in O.S.No.2 of 1991 in the suit filed by the 1st respondent-plaintiff having been aggrieved by the judgment and decree dated 15.11.1994 declaring the plaintiff as owner of the suit schedule properties and for perpetual injunction against the defendant Nos.1 and 2 and for costs.

The plaint schedule consists of 3 items of immovable property including house of Adilabad District viz., 1) Land bearing S.No.28 of Ac.4-16 guntas (also known as S.No.28/1) of Dasnapur (vill.

& Mandal) with southern boundary remaining land of Ac.2-00 guntas in S.No.28/1, (2) land bearing S.No.9 of Ac.0-18 guntas of Mavala (Vill & Mandal) with eastern and southern boundary remaining land of S.

No.9 and (3) House with panchayat Door No.3-4 of Savargaon (Vill.

& Mandal).2.

Before coming to the grounds of appeal attacking legality and correctness of said decree and judgment allowing the suit claim by the trial Court and what are the points that required for determination on being formulated from rival contentions in this fiRs.appeal and its scope, for better appreciation, the factual matrix of the case before trial Court is the following:- 2(a).For convenience, the parties are being arrayed with their names as per the cause title.

The case of the parties, not in dispute, in brief, is as follows: The plaintiff Lasumbai (issueless) is the second wife of Sr.Metpally Rajanna, who died in the year 1983.

The defendant Nos.1 and 2 by name Muttaiah and Rajamma (died pending appeal) are son and daughter of said Rajanna through his fiRs.wife by name Narsamma, who predeceased Rajanna.

Said Rajanna was the only son of one Metpally Ramanna and Ramanna died intestate before the police action.

The police action was in fact during the years 1948-49 to say death of Ramanna was prior to 1950 (elicited from cross-examination of D.W-1-1st defendant by plaintiff on 31.10.1994).2(b) It is also not in dispute that; (1) the 1st defendant Muttaiah earlier filed O.S.No.101 of 1987 on the file of District Munsif, Adilabad against Lasumbai (plaintiff in present suit O.S.No.2 of 1991) as sole defendant, for the relief of permanent injunction restraining her and her men from selling or otherwise alienating or transferring the agricultural land in S.No.28/1 & 2 admeasuring Ac.6-16 guntas of Dasnapur (vill.

& Mandal).S.No.1-E admeasuring Ac.2-34 guntas of Batti Savargaon village; S.No.6 admeasuring Ac.1-24 guntas and S.No.9 admeasuring Ac.1-13 guntas of Mavala village and house bearing No.3-4 with cattle shed situated at Batti Savargaon village; to one Janardhan Reddy, S/o.Muthyam Reddy of Adilabad or any other persons with averments; he and his father were co-parceners of Hindu Joint family by jointly cultivating with no partition of the suit lands and after death of his father in 1983 leaving behind him as sole co-parcener, he and his step mother Lasumbai have been jointly cultivating land in S.No.28 of Dasnapur to its half extent each for matter of convenience, even the entire suit properties devolved on him being sole Co.parcener and Kartha of joint family to mutate the lands in his name; but to his surprise S.No.28 was sub-divided into 28/1 and 2 and shown him and his step mother as separate pattedars in the Pahani of the years 1984-85 and 1985-86 which was done without his knowledge and he initiated proceedings to rectify the record of rights in March, 1989 which is pending; that on 03.06.1982 Rajanna and Lasumbai executed the document (marked in the suit as Ex.A-1) in favour of him that they cultivate the land in S.No.28 of Ac.6-16 guntas till death and thereafter he becomes absolute owner and exclusive possessor along with other lands of Mavala village, house and cattle shed of Bhatti Savargaon and not to alienate or transfer or sell the properties in their life time and the document was in the custody of one Gangareddy (P.W-2 of the suit O.S.No.101 of 1987) President of Gone Kapu Sangham and the defendant-Lasumbai with malafide intention to cause loss to him entered into agreement with Janardhana Reddy, S/o.Mutyam Reddy in 2nd week of August, 1987 to sell land in S.No.28/1 in an extent of Ac.6-16 guntas and taking steps to register without right or title and he apprehends that she may alienate other properties also behind his back to cause loss and harassment, hence the suit for injunction not to alienate or transfer to Janardhan Reddy or any other person.

(ii) Lasumbai as defendant in the suit O.S.No.101 of 1987 (plaintiff in O.S.No.2 of 1991) filed written statement while denying the plaint averments but for she is second wife of Rajanna and step mother of Muthaiah; contending that the lands and cattle shed besides house No.4-58 of Batti Savargaon village were separate and self-acquired properties of late Rajanna and Rajanna in his lifetime settled his properties viz., lands and houses on his son Mutaiah, widowed daughter Rajamma and herself (Lasumbai) in the year, 1974 by family arrangement viz., Northern half portion of S.No.28 Ac.6-16 guntas of Dasnapur, Ac.0-18 guntas in S.No.9 and house bearing No.4-58 on plaintiff besides eastern portion of land in Mavala village, a portion in cattle shed No.3-4; S.No.1/2 admeasuring Ac.2-34 guntas of Savargaon village, Ac.0-18 guntas in S.No.7 of Mavala village settled in favour of Rajamma and southern portion in S.No.28 measuring Ac.6-16 guntas of Dasnapur and Ac.0-18 guntas land in S.No.9 of Mavala village besides house bearing door No.4-56 of Savargaon village settled on her (Lasumbai) and ever since the family arrangement they are in exclusive possession and enjoyment of respective properties and Rajanna also executed will dated 26.07.1974 by abundant caution bequeathing his properties mentioned above and S.No.6 of Mavala village in an extent of Ac.1-25 guntas once belonged to Rajanna, it seems he lost possession about 25 years ago, that she and Muthaiah never jointly cultivated the land in S.No.28 of Dasnapur village, that there are clear cut ridges dividing the land in equal extents and each party is cultivating separately; that late Rajanna was separate in mess and living with Lasumbai till his death and by the time of death of Rajanna there was no joint family in existence and question of Muthaiah becoming Kartha of joint family does not arise; that the suit property has been rightly mutated in her name as per family settlement and subsequent Will dated 24.07.1974 and she did not receive any notice on so called proceedings for rectification of entries; that she is illiterate woman and to her knowledge she did not execute any document muchless (Ex.A-1) on dated 03.06.1982 and even assuming without admitting any such document, it is void, inadmissible and unenforceable and legal rights flowing from personal law cannot be curtailed in the manner alleged and it is not explained why so called document was kept in the custody of Gangareddy when it was executed.

It was also contended that had Muthaiah only son of Rajanna shows civility and accommodation, there would have been no necessity of living separately.

She however contended as exclusive owner of S.No.28/1 with right to sell for her maintenance and upkeep and she sold Ac.2-00 of said land to One Sanjeeva Reddy and Mutyam Reddy prior to filing of the suit for Rs.40,000/- and executed registered sale deed dated 30.08.1987 (no such sale deed is filed in the suit even apart from she did not chose to come to witness box muchless any of the alienees referred by her).While she denied that the properties are the ancestral joint family properties, contended further that she being widow of Rajanna besides Rajamma, widowed daughter of Rajanna are also entitled to share under Hindu Succession Act even in said properties of Rajanna and had there been no family settlement, even Muthaiah could not have sold a piece of land out of his portion in S.No.28/2 to one Reddy under sale deed No.617/87 to say no joint family property in existence and there is no cause of action to the suit to seek relief of injunction not to alienate and to dismiss the suit.

(iii) On the main issue as to plaintiff Muthaiah is entitled for permanent injunction, from the evidence adduced by Muthaiah as P.W-1, Ganga Reddy as P.W-2 and A.Mohan Reddy as P.W-3 with reference to said agreement dated 03.06.1982 marked as Ex.A-1, the KaSr.Pahani of S.No.28 for the year, 1954-55 as Ex.A-2 of S.No.28 of Dasnapur village, khaSr.pahani of the year, 1954-55 as Ex.A-3; KhaSr.Pahani of the year, 1954-55 for the lands at Mavala as Ex.A-4; C.C of Pahanis for S.No.28 of Dasnapur village of the year 1983-84 as Ex.A-5 and of the year 1985-86 as Ex.A-6, the suit was decreed in favour of Muthaiah and against Lasumbai by the trial Court and the same was made final without any appeal.

The findings in said suit O.S.No.101 of 1987 were that from the admitted relationship between the parties, what was saying by Lasumbai of some of the properties are self-acquired by Rajanna was disproved by Muthaiah from KhaSr.Pahanis for the yeaRs.1954-55 in the name of Ramanna (father of Rajanna) to say those are ancestral and not self-acquired of Rajanna; what was contended by Lasumbai of family arrangement in the year, 1974 and thereafter there was no joint family property by the date of death of Rajanna and in the family arrangement; Southern half in S.No.28 (sub-divided as S.No.28/1) of Dasnapur village an extent of Ac.6-16 guntas, Ac.0-18 guntas in S.No.9 of Mavala and house in Door No.3-4 given by Rajanna in her favour and she becomes absolute owner and got right to sell for her maintenance and sold Ac.2-00 guntas to Sanjeeva Reddy and Mutyam Reddy before filing the suit on 30.08.1987.

Coming to the Ex.A-1 document dated 03.06.1982 executed by Rajanna and Lasumbai in favour of Muthaiah, from the evidence and her contest as if she is illiterate and her thumb impression was obtained forcibly on Ex.A-1 by Yes-men of Muthaiah and the document will not give any right to Muthaiah and not take away her right in the property settled on her by her husband referred supra; from that she did not chose to deny the thumb impression put by her on the document Ex.A-1 (dated 03.06.1982) and though P.W-2 and P.W-3 the caste elder and the scribe of the document also examined in proof of it; the suit being for perpetual injunction against the defendant restraining her from alienating the property legality or otherwise; the document need not be considered; from her contention of Rajanna lived with her till his death and settled some properties to the plaintiff, some property to her and some property to his widowed daughter and after death of Rajanna each became owner.

There is a cross-examination of Muthaiah (P.W-1) by her where Muthaiah admits that there is ridge in between the land bearing S.No.28 and he is in possession of northern half and Lasumbai is in possession of southern half and while denying they are cultivating so separately since 1974 however admits as cultivating for the past 10 years and Rajanna died 7 years back and that out of the Northern half, he made 40 plots and except plot No.7 and 8 he sold the remaining without consent of Lasumbai and also deposed by P.W- 1 that his father Rajanna when wanted to alienate the property, he objected to it through caste elders including P.Ws 2 and 3 Ganga Reddy, Mohan Reddy and there Ex.A-1 document was executed by Rajanna and Lasumbai; that she also filed a police complaint against him for theft of her properties and he also admits that the defendant Lasumbai already sold Ac.2-00 of land in S.No.28 prior to the suit though he does not know the vendees are Sanjeeva Reddy, Mutyam Reddy and admits that he did not file any suit for cancellation of said sale by Lasumbai.

The Court further observed while answering issue No.1 from page 16 onwards of the judgment (Ex.A-4) that the Advocate for Lasumbai represented no evidence to lead by her, hence to close stating she would file comprehensive suit for declaration and after the matter pending for arguments stage, said Lasumbai changed advocate and filed petition to reopen in I.A.No.114 of 1990 to permit her to adduce evidence and the representation by her to close evidence is without information, thereby she could not lead evidence and is advised to produce her evidence and the same was opposed by Muthaiah by his counter saying Lasumbai and her brother regularly attending the Court and got knowledge and because instructed the advocate to close and the Court closed accordingly the evidence, it cannot be reopened; as the suit is only perpetual injunction restraining Lasumbai from alienating the family properties and not even for cancellation as some of the properties were alienated by Lasumbai to Sanjeeva Reddy, S/o.Mutyam Reddy besides she also sold some of the properties which are out of S.No.28 and so far as that Ac.2-00 already sold by Lasumbai prior to the filing of injunction suit no relief can be granted and as she cannot get her rights to be declared in the injunction suit setting up the family arrangement but for by separate suit for declaration wanted to file and represented through her advocate already so to prove therein, there are no grounds to reopen her evidence by allowing the belated application in the arguments of the suit in progress in granting the relief of perpetual injunction while giving liberty to her to file suit for declaration.

Thus, the decree in suit for injunction no way resjudicata to the present suit for declaration and consequential injunction, but for to consider how far the findings therein operate as obiter to any extent of non-rebuttal by cogent evidence herein against the evidence therein.

2(c) As the declaratory suit of Lasumbai in O.S.No.2 of 1991 since decreed, impugning it the present appeal suit as A.S.No.178 of 1995 is filed.

The fact of the earlier litigation between the parties covered by judgment Ex.A-4 proves that the suit properties are not the self acquired properties of Rajanna, but for part of the joint family properties of Muttaiah, Rajanna and his father Ramanna.

The execution of Ex.A-1 agreement dated 03.06.1982 of O.S.No.101 of 1987 covered by Ex.A-4 judgment; by Rajanna and Lasumbai to Muthaiah from not denied her thumb impression and signature of Rajanna therein and not proved of the same was obtained by alleged force in support of her contention either by letting any evidence or from the cross-examination of P.Ws 1 to 3 as can be seen from the finding between the parties in this regard covered by the Ex.A-4 judgment herein.

It is not even the case of Lasumbai (plaintiff herein) that in that Ex.A-1 document of Ex.A-4 judgment, there was any reference of the so called family arrangement or will of 1974.

The document not seen light in the suit to discuss anything further thereon and in the written statement of Muttaiah and Rajamma herein there is no plea even referring to it.

Thus, the only thing to be seen is whether there was as pleaded by plaintiff-Lasumbai any oral family arrangement by Rajanna of the year 1974 of the joint family properties and its binding nature and also the truth, genuineness and enforceability of will said to have been executed by Rajanna also in the year 1974 and therefrom there was any separate possession and enjoyment of the land in S.No.28/1 of Dasnapur Northern half i.e., Ac.6-16 guntas by Muthaiah and the southern half of Ac.6-16 guntas by Lasumbai with ridges in between the same with respective separate enjoyment or it is only for sake of time being enjoyment and not pursuant to any family arrangement or partition or the like.

3) The facts of appeal suit lis with reference to the above is the following: 3(a) The case of the plaintiff Lasumbai in brief is that during the life time of Rajanna, he settled his entire properties, without keeping any property with him, in favour of her, Muthaiah and Rajamma (respectively) separately (being his self acquired) and ever since the date of said oral family arrangement, all the parties to the suit have been in exclusive possession and enjoyment of their respective properties in own right and said Rajanna also as an abundant caution executed a will Ex.A-1 dated 24.07.1974 (registered document No.12/1974) bequeathing his properties on the same lines of said earlier oral family settlement and the will was registered.

Though no date or month of said family arrangement even of Telugu Almanic or even of fasali mentioned.

Pursuant to the will, name of Lasumbai was also mutated after enquiry by tahsildar in the revenue records (after Rajanna's death) in relation to her properties and as per oral settlement and will, plaintiff is the exclusive owner of the properties.

Late Rajanna was separate in mess and living along with the plaintiff till his death and by the time of death of late Rajanna, in 1983, there was no property (joint or separate) existing in his favour.

As the matters stood thus, an extent of Ac.2-00 out of the share of the plaintiff Lasumbai was sold away by her to one P.Sanjeeva Reddy (not made party to the suit) and executed a registered sale deed dated 27.08.1987 (not filed the document to know the recitals and as to it was prelitum or pendentilitum document to date of suit in O.S.No.101 of 1987 against her) and the remaining land of her share of Ac.4-16 guntas was also sold away by her to P.Janardhan Reddy, S/o.Mutyam Reddy (3rd defendant) by an agreement for sale dated 15.07.1987 (The agreement not even filed by her and there is no mention of this agreement transaction in her written statement in O.S.No.101 of 1987 if at all true and genuine) and received an amount of Rs.60,000/- on various dates and handed over possession of the same.

The plaint averments of her further read that in O.S.No.101 of 1987 filed against her by Muthaiah for perpetual injunction, learned District Munsif held in Ex.A-4 judgment and decree dated 16.07.1990 that she is entitled to file a comprehensive suit for declaration to the extent of the properties in her possession and hence the suit claim.

3(b).The case of Muthaiah and Rajamma (since died) in nutshell is that they all constitute joint hindu family, out of which their father Rajanna and the 1st defendant were co-parceners and the plaint schedule properties are the Co.parcenary properties of said joint Hindu family, that after death of Rajanna in the year 1983, the 1st defendant became sole co-parcener of the joint hindu family; that said properties are inherited from Rajanna's father Ramanna and Rajanna neither settled any of the properties nor executed any will muchless on 24.07.1974; that plaintiff-Lasumbai got mutated as pattedar for the land to an extent of Ac.6-16 guntas in Sy.No.28 of Dasnapur in her name in collusion with revenue authorities against the provisions of law behind their back which is void; that before death of Rajanna, who is unable to attend the field work, allowed the plaintiff Lasumbai to cultivate the land bearing Sy.No.28 of Dasnapur to its half extent apart from a part of land bearing Sy.No.9 of Mavala village and land bearing No.1/84/A of Savargaon village for convenience and to avoid disputes; that plaintiff Lasumbai with an oblique motive executed an agreement for sale in favour of the 3rd defendant-Janardhana Reddy even without right to alienate the joint family properties and she stealthily effected the previous sale also in favour of Janardhana Reddy without their knowledge and consent and with ulterior motive to cause loss to them despite the permanent injunction decree against her by showing lesser consideration; even though the market value of the said properties was more than Rs.75,000/- in collusion with said vendees and prayed to dismiss the suit.

3(c).The case of defendant No.3 Janardhana Reddy is that he purchased the land measuring Ac.4-16 guntas in S.No.28 of Dasnapur village for a consideration of Rs.88,000/- having paid Rs.60,000/- out of it by an agreement for sale dated 15.07.1987 from Lasumbai (plaintiff) and possession was already handed over to him, she was to execute sale deed in his favour on receiving balance sale consideration but for Muthaiah in O.S.No.101 of 1987 obtained perpetual injunction respecting the properties.

From the pleadings, trial Court framed following issues:- i) Whether the plaintiff is owner of land bearing Sy.No.28/1 admeasuring Ac.4-16 guntas situated at Dasnapur village, wet land bearing Sy.no.9 admeasuring 1/3 of its extent situated at Mavala village and house bearing No.3-4 situated at Savargaon village?.

ii) Whether the plaintiff is entitled for relief of perpetual injunction?.

iii) Whether the properties as enumerated in para No.4 of the plaint are separated and self acquired properties of late Metpalli Rajanna?.

iv) Whether the late Rajanna settled properties in favour of plaintiff, defendant Nos.1 and 2 in the year 1974 as stated in para No.5 of the plaint?.

v) Whether late Rajanna executed will dated 24.07.1974 if so, whether it is valid?.

vi) Whether the plaintiff has perfected her title by adveRs.possession over the suit properties?.

vii) Whether the plaintiff under valued the suit properties and paid insufficient court fee?.

viii) Whether the defendants 1 and 2 are entitled for compensatory costs?.

ix) To what relief?.

From above pleadings and issues and from the evidence adduced before the trial Court on record that of plaintiff Lasumbai as P.W.1 and T.Rajeshwar Rao (one of identifying witness for registration of Ex.A-1 will before the Sub- Registrar) as P.W-2 and the 1st defendant Muthaiah as D.W.1 and Bhooma Reddy (brother-in-law of D.W-1) as D.W-2; relying upon by the plaintiff Exs.A-1 to A-4 viz., will dated 26.07.1974; Pahanis of 1983-84 for Mavala and Dasnapur village and the C.C of Judgment in O.S.No.101 of 1987; by the defendants 1 and 2, Exs.B-1 to B-9 viz., C.C of KhaSr.Pahanis for the years 1954-55 for S.No.28 of Dasnapur, S.Nos.6 & 9 of Mavala village, S.No.1/E of Savargaon and pahanis of the years 1973-74 to 1975-76 & 1980-81 & 1981-82 of S.No.28 Dasnapur; the 3rd defendant did not adduce any evidence and did not even file any contract for sale or contract of sale if at all subsequently obtained from plaintiff for any land in S.No.28 of Dasnapur; the trial Court by its decree and judgment granted the reliefs in favour of plaintiff and against the defendant Nos.1 and 2 with the observations that- 6) The suit claim for declaration and injunction is based on a family arrangement (oral) accompanied by a document in the shape of a will (Ex.A-1).pursuant to the claim of the plaintiff of the oral family arrangement 9 years prior to the Rajanna died in the year 1983, the 1st defendant admitted about plaintiff in possession of the properties shown in the plaint schedule and he is in possession of properties said to have been given to him in the family arrangement and as D.W-1 in his evidence stated that his father made such arrangement and allowed plaintiff to cultivate the lands, to avoid family disputes as state of health of Rajanna was not good in saying Rajanna allowed the plaintiff to cultivate some lands and also allowed his sister to cultivate some lands by which he admits their possession and separate enjoyment of respective properties which are said to have been shown in the will and also stated in his chief examination that they are living separate because his wife was not on good terms with plaintiff; there cannot be any doubt therefrom that there was a family arrangement whether it was with a view to save the family from disputes or otherwise.

Apart from this, 1st defendant (D.W-1) in his evidence stated that he is cultivating half of the land in Mavala and plaintiff and her brother are cultivating the remaining half of Mavala village and his father Rajanna allowed his step mother to cultivate Ac.6-16 guntas of land of Dasnapur which is on southern side while allowed him to cultivate remaining half on Northern side and his father asked him to cultivate Ac.0-04 guntas of land in Mavala village, he also stated that plaintiff was living in Savargaon village in the house of 2 tasmas and this arrangement was made in the presence of elders at one breathe and with no elders at other breathe and again says his father made the arrangement about 20 years back is not known, by pleaded ignorance of saying he does not know anything about it.

Apart from it, he admitted about his sale of Ac.2-00 of land out of Northern half of Dasnapur village to one P.Sanjeeva Reddy under sale deed and put the vendee in possession and he also made plots of the Southern side remaining in his occupation and plaintiff also sold Ac.2-00 out of the southern side land to Sanjeeva Reddy, by which is in proof of the factum they are enjoying separately as absolute owners respective extents otherwise could not have sold the Dasnapur lands and this admission of 1st defendant that Rajanna allowed them to cultivate the lands to separate from each other and they have been in exclusive possession is clear that the family arrangement is true.

Coming to the next question about execution of the will, he admitted in the cross-examination of the signatures on the will is that of his father and P.W-2 T.Rajeswara Rao a retired teacher is a good friend of his father and said Rajeswara Rao deposed about there was a panchayat in the village regarding lands of Rajanna in the life time of Rajanna and as per advise of eldeRs.Rajanna settled lands to plaintiff, 1st defendant and 2nd defendant by oral arrangement and Rajanna told him that he would execute will in favour of the family members having come to his house in the evening and on next day he should go to Sub-Registrar office and accordingly on next day he went to Sub- Registrar Office where Rajanna, Bojja Rajeswara Rao, besides document writer Amarullah Khan (clerk under one Rajeswara Rao) drafted the will as per narration of Rajanna in his presence and read over to Rajanna and after agreeing to correctness, Rajanna put his signatures in Hindi and Rajeswara Rao asked him whether he was prepared to identify him and he answered in the affirmative and B.Rajeswara Rao and Gulam Mohammed attested the document and he identified Rajanna before the Sub-Registrar and P.W-2 stated that Rajanna was hale and healthy at that time and the bequest in the will in favour of plaintiff and defendants 1 and 2 was as per the family arrangement and thereby it is established by plaintiff that Rajanna executed Ex.A-1 in sound and disposing state of mind.

The trial Court further observed from para-18 that in the Orissa High Court Judgment in Brajendra Prasad Pradhan V.

Sachidananda Pradhan1 relied upon by defendant Nos.1 and 2, it was no doubt held that merely because family members living in different houses in the same village by making payment of house taxes separately it is for convenience and thereby suit for partition of the houses cannot be dismissed from the plea set up of prior partition therefrom and the other decision of Rama Chandra Rambux V.

Chempabai2 as to how the evidence with regard to the execution of a will should be appreciated and the other decision of our High Court Vandavasi Karthikeya @ Krishna Murthy V.

Kamalamma3 with the contention therefrom by the counsel for defendant Nos.1 and 2 of there was no acceptable evidence inspiring to support the case of the plaintiff of family arrangement and that of Rajanna executed Ex.A-1 will and contended that property is ancestral property and the will which is beyond his share, is incorrect.

In fact these contentions are all academic in nature because plaintiff is not relying upon Ex.A-1 will alone but for on family arrangement between the parties prior to the execution of the will and in the light of the family arrangement evidenced by execution of Ex.A-1 will as a proof positive the family arrangement pleaded can be taken as proved by plaintiff as the defendants 1 and 2 also in exclusive possession of their respective extents, it is not open to say there was no family arrangement and Ex.A-1 will is not valid under law and accordingly held that plaintiff is entitled to a declaration of title prayed for with perpetual injunction being the owner of the property while directing each party to bear their own costs.

The sum and substance of the trial Court's judgment is will is also proved from what P.W-2 only identifying witness before the Sub-registrar since has spoken about his presence and witnessing execution of will by Rajanna and from evidence of D.W-1 (1st defendant) in his cross-examination about their separate possession and enjoyment though stated as for convenience sake at the instance of Rajanna that supports claim of the plaintiff as outcome of oral family arrangement which is valid and that is lending support from alienation of part of the respective extents out of the enjoyment by the 1st defendant and the plaintiff which is but for family arrangement of having rights held not possible.

7) It is said judgment and decree of the trial Court with above finding impugned in the appeal with sum and substance in the grounds of appeal in nutshell that said judgment and decree of trial Court is contrary to law, weight of evidence and probabilities of the case; that the trial court has erred in holding that 1st respondent-plaintiff clearly established said family arrangement by Rajanna, that also referred in the Ex.A-1 registered will; as if alleged family arrangement was made by late Rajanna though same is not proved and not true but for said arrangement is a story invented by the plaintiff for purpose of the suit.

It is also contended that alleged will is brought into existence by plaintiff at the instance of her brother.

It is also contended that the trial Court ought to have seen what prevented plaintiff and Rajanna to keep the will in dark for several years and the trial Court should have seen from the earlier suit O.S.No.101 of 1981 (Ex.A-4 judgment) observations regarding Ex.A-1 marked which is an agreement dated 03.06.1982 entered between Rajanna, Lasumbai (plaintiff) and Muthaiah (1st defendant) in O.S.No.2 of 1991, wherein even alleged family arrangement of the year 1974 has no reference muchless the will of 1974 which belies so called family arrangement and proves said agreement prohibits any alienation of properties by Lasumbai and Rajanna in their life time, but for enjoyment.

It is also contended that except P.W-1 plaintiff interested testimony there is no worth evidence on record either to prove Ex.A-1 will or the so called family arrangement and instead of so holding the trial Court went wrong in wrongly shifting the burden on the defendants though it is for the plaintiff to establish and the trial Court also should have held that the suspicious circumstances surrounding Ex.A-1 alleged will are there while Rajanna was living with Lasumbai the plaintiff, to say her influence as propounder to dispel and the trial Court should have seen that Rajanna has no right to execute any will for the properties are not his self acquired and separate, but of joint family properties which totally he cannot bequeath and thereby the alleged bequeaths as if he is owner of entire property are unenforceable and outcome of inconsistency to dispose of by Rajanna even his share under Section 30 of the Hindu Succession Act and even under Section 6 of Hindu Succession Act after death of Rajanna in the year 1983 his share alone that could be succeeded by the three legal heirs of him being son, daughter and wife each 1/3 and that in Ex.A-1 there is no any revocation clause to construe as a will to say the recitals are created outcome and otherwise for not duly stamped and not registered, the contents cannot be gone into.

It is also the contention that, had there been any truth of so called family arrangement and separate possession and enjoyment with rights therefrom saying of the year 1974 there must be mutation therefrom and not from the year 1983-84 to belie so called family arrangement and it is the contention therefrom that the trial Court should have dismissed the plaintiff's suit for declaration and injunction also with the finding of no injunction can be granted among members of joint family or co-owners in favour of one against the other, hence, to allow the appeal by dismissing the plaintiff's suit claim and setting aside the trial Court's decree and Judgment.

8) The respective counsel for plaintiff, 1st respondent to the appeal and other respondent (3rd defendant) contended that the trial Court decree and judgment are just and well considered outcome of the family arrangement is proved and placed as many as 6 decisions of the Apex Court in support of considering the case facts for existence of said family arrangement of AIR1955SC481 AIR1966SC323 AIR1966SC1836 AIR1971SC1337 AIR1976SC807and (2003).SCC740 and therefrom sought for dismissal of the appeal.

9) Now, the points that arise for consideration to decide the appeal lis are: i) Whether the properties covered by the plaint schedule among other extents are the self-acquired properties of Rajanna as contended by the plaintiff (second wife of Rajanna) or the joint family co-parcenery properties of Rajanna and the 1st defendant (defendants 1 and 2 are the son and daughter of Rajanna through late 1st wife) right from father of Rajanna by name Ramanna, who died prior to 1950?.

ii) Whether there was any family arrangement (oral) in between Rajanna, his wife, son and daughter (plaintiff, D-1 and D-2 with Rajanna) as pleaded by the plaintiff by allotment of respective shares creating respective rights and if so, how far it is binding on the parties?.

iii) Whether the will Ex.A-1 said to have been executed by Rajanna is duly executed by Rajanna with intent to make bequeaths referred therein and in sound and disposing state of mind and as a last will and testament and how far the same is proved on due execution in sound and disposing state of mind as a last bequeath and its enforceability for entire properties and whether acted upon?.

iv) How far the findings in the earlier suit between the parties in O.S.No.101 of 1987 covered by Ex.A-4 judgment not in dispute between the parties are binding in deciding the present lis?.

v) Whether the trial Court's decree and judgment holding that there was an oral family arrangement and also proved by subsequent execution of Ex.A-1 will are unsustainable and requires interference by this Court while sitting in the appeal and if so to what extent and with what observations?.

vi) To what result?.

10) From the above, as the points 1 to 5 of the appeal lis are interconnected, to avoid repetition of the facts and for convenient disposal, these are taken up together.

Admittedly in the suit filed by the appellant herein as plaintiff in O.S.No.101 of 1987 for permanent injunction relief against the 1st respondent to the appeal (sole plaintiff of O.S.No.2 of 1991) as sole defendant and while saying without prejudice to the plaintiff's such right of filing suit for declaration of right and title claimed over the properties which are subject matter of the suit, the permanent injunction is granted and it was in so granting categorically held that all the properties referred therein and the plaint schedule properties in the present suit O.S.No.2 of 1991 are part of the ancestral properties of Rajanna and Muthaiah and not the self-acquired properties of Rajanna father of Muthaiah, since those were the family properties that were earlier standing in the name of father of Rajanna by name Ramanna and the Ex.A-2, A-3 and A-4 khaSr.pahanis filed therein of the year 1954-55 for S.No.28 of Dasnapur village for the total extent of Ac.12-36 guntas was recorded in the name of Ramanna so also of Butta Savargaon and Mavala village lands in the khaSr.Pahanis of said year (Ex.B-1 to B-3 in this suit).The Ex.A-4 in the suit is the judgment of O.S.No.101 of 1987.

At pages 11 and 12 of the judgment answering issue No.1, it was held to the finding on entitlement of permanent injunction against any alienation that those are the joint family co-parcenary properties.

Said finding is conclusive.

Even for any reason, there was no conclusion by that finding for this suit, in this suit; among the Exs.A-1 to A-4 and Exs.B-1 to B-9 marked before the trial Court, the plaintiff Lasumbai, W/o.Rajanna did not file any documents to show any of the properties covered by the subject matter of the lis are the self-acquired properties of her husband Rajanna muchless even by any partition between Rajanna and Ramanna despite Ex.B- 1 to B-3 KhaSr.Pahani which are equal to Exs.A-2 to A-4 KhaSr.Pahanis filed in O.S.No.101 of 1987 covered by Ex.A-4 judgment relied upon by the plaintiff herein, these khaSr.pahanis for the year 1954-55 show those are standing in the name of Rajanna's father Ramanna as pattedar.

11) The KhaSr.Pahanis for the year 1954-55 which is a permanent revenue record (as laid down by the Division Bench of our High Court in the case of Joint Collector, Ranga Reddy District V.

Syed Ahmed Hasan and Others reported in 2011(3) ALT701DB, following the decision of Apex Court in Sikarchand Jain versus Digambar Jain AIR1974SC1178 is a record of right and title and it cannot be altered without there being any proceedings issued by competent authority for correction.

12) As per Ex.B-1 khaSr.pahani of the year 1954-55 of Dasnapur (sincila No.74, survey No./hissa No.28 as per column No.3, the extent is shown in Sethwar total Ac.12-32 guntas, Regadi land and Patta land, the name of the pattedar Mattapalli Ramanna, as per column Nos.7 and 8 and even at column No.13 noted the name of M.Ramanna, S/o.xxx appears as Rajalingam of Savargaon village and the name of Mattapalli Rajanna, S/o.Ramanna of Savargaon village was subsequently incorporated by rounding the name of Ramanna.

It is for the reason that after death of the original pattedar Ramanna as proved from D.W-1 cross-examination by palitniff that Ramanna died before the police firing which was in the year 1949 and the khaSr.pahani was of the year 1954-55 in noting for the Rajanna is the sole legal heir being the only son of Ramanna since then died.

It is crystal clear so far as the land in S.No.28 concerned, the ancestral property in the hands of Mattapalli Rajanna even by the year 1954-55 as per said Ex.B-1 khaSr.pahani and not the self acquired property of Rajanna and the contention of plaintiff that it was the property of Rajanna is belieing from said unrebutted documentary evidence.

Even coming to Ex.B-2 khaSr.pahani of the year 1954-55 of Mavala village, the lands in S.No.6 of Ac.0-8-9 guntas and in S.No.9 of Ac.1- 13 guntas also the patta lands of said Ramanna of Savargaon village as per column Nos.1, 3, 7, 8 and 13 and at column No.13 the name of Ramanna rounded of and Rajanna, S/o.Ramanna was included for the two items and also another extent of S.No.9A of Ac.0-7 guntas or so.

Similarly as per Ex.B-3 khaSr.pahani of 1954-55 of Savargaon village for S.No.1, the extent is Ac.0-39 guntas and for S.No.1/E the extent is Ac.0-19 guntas and the pattedar is Mattapalli Ramanna, S/o.Rajalingam of Savargaon village.

Therefore, said properties in which plaint schedule are part are none the self-acquired properties of Rajanna but for the ancestral properties of Rajanna and his son-Muthaiah, since those were standing in the name of Ramanna as pattedar (i.e., the grand father of 1st defendant Muthaiah and father of Rajanna).It is in fact, the parties are Hindus governed by Hindu Succession Act, 1956 and prior to that under the un-codified Hindu Law of the Mithakshara coparcenary to say by the time Mattapalli Ramanna died intestate in 1949-50 leaving behind him his son Mattapalli Rajanna and the Rajanna's son Muttaiah (born in 1930 or so from his age shown 60 years in the plaint filed in O.S.No.2 of 1991 in the year 1990) as the other surviving coparcener.

From this factual background with proof, even coming to Ex.B-4 to B-9 revenue pahanis concerned, Ex.B-4 is the No.3 pahani of the year 1972-73 speaks for Dakala No.99 survey No.28, total extent of Ac.12-32 guntas, the name of pattedar shown as Mattapalli Rajanna.

It is to be read with reference to Ex.B-1 facts discussed supra to say Rajanna's name mutated not because he is absolute owner but for family manager of coparcenery of Rajanna, S/o.Ramanna and son of Rajanna by name Muthaiah and it further reveals the entire extent by showing mutated in the name Rajanna to say there was no any partition between Rajanna and his son Muthaiah, same is also the position with reference to the Ex.B-5 No.3 pahanis of the year 1973-74; Ex.B-6 No.3 pahani of the year 1974-75; Ex.B-7 No.3 pahani of the year 1975-76; Ex.B-8 No.3 pahani of the year 1980-81 and also Ex.B-9 No.3 pahani of the year 1981-82 so far as this S.No.28, total extent of Ac.12-32 guntas concerned.

It is to say there was no any partition between Rajanna and Muthaiah muchless any family arrangement and allotment by division any extents out of it during life time of Rajanna upto 1983 (when he died) as there was no any mutation for any respective extents out of it showing as allotted by division by arrangement.

If really there was the alleged family arrangement in 1974, there could be mutation by sub-division or otherwise with the names for respective extent as per such arrangement.

It is with reference to it, if Ex.A-3 and A-2 considered, so far as the land of Dasnapur in S.No.28 concerned, even from the revenue record Ex.A-3 of the year 1983-84 the certified copy issued was only in the year 1985 on dated 23.01.1985 with green ink signature of the Tahsildar thereon and there is no mention of the name of Lasumbai and Muttaiah for southern and northern each Ac.6-16 guntas but for showing Rajanna to the entire extent of S.No.28 of Ac.12-31 guntas and again showing only Lasumbai.

It shows it is cause included after death of Rajanna.

Had there been a family arrangement, when it is the case of the plaintiff Lasumbai herein and also in the previous suit covered by O.S.No.101 of 1987 of alleged family arrangement prior to 1974 or in the year 1974 prior to alleged registered will Ex.A-1 in the suit dated 24.07.1974, there is no mutation of alleged elderly so called oral family arrangement of any division in the year 1974 or after 1974 even from this entry in Ex.A-3.

It is because it is the specific case of Lasumbai in this suit as well as in the earlier suit that Rajanna was not allotted any properties separately but for herself as wife of Rajanna by Rajanna and to son of Rajanna by name Muthaiah besides daughter of Rajanna by name Rajamma and when it is her case that she was allotted Ac.6-16 guntas being the half and Muthaiah was allotted the remaining Ac.6-16 guntas leave about the confusion in the impugned judgment of this appeal in mentioning northern for southern as it is there in Ex.A-4 judgment of O.S.No.101 of 1987 specifically including in the plaint pleading herein of she was allotted the southern half and Muthaiah the northern half, the mutation must be in the name of Lasumbai and Muthaiah respectively and shall not be in the name of Rajanna for the total extentm, apart from half of the extent again in the name of Lasumbai without showing even for the remaining half in the name of Muthaiah.

It belies the very claim of the plaintiff Lasumbai from this own document of her Ex.A-3 of the Tahsildar came to the village and made enquiry regarding the oral family arrangement and mutated the names of Lasumbai and Muthaiah for respective each half taken as per respective family arrangement in the life time of Rajanna.

Further, even coming to Ex.A-2 revenue record relied on by Lasumbai plaintiff for Mavala village which is of the year 1983-84, the name of Mattapalli Rajanna, S/o.Ramanna is noted for the year 1983-84 for the total extent of Ac.1-13 guntas and at column No.9 there is mention about registered will deed 12 of 1974 dated 26.07.1974 and again out of it, the name of Lasumbai wife of Rajanna shown for the self-same land for Ac.0-18 guntas and at column No.11 there is a reference ".due to sanctioned of partitioned decree patta lands Digam Ijafa".It is unknown why not for extents bequeathed under the so called will in the name of Muthaiah and Rajamma the son and daughter of Rajanna besides Lasumbai name was only noted as wife of Rajanna, for the claim of Lasumbai the bequeaths include to them in this survey number and not to her alone.

In fact there is no any partition muchless sanctioned by partition decree so to cause mention.

It is nowhere speaks even in Ex.A-2 that there was any oral family arrangement or oral partition before elders but for reference to will deed and partition thereunder if at all.

It is not the case of Lasumbai either in the plaint or in her evidence as P.W-1 muchless in the written statement with no evidence as defendant in O.S.No.101 of 1987 covered by Ex.A-4 judgment that pursuant to so called will of 1974 there was any partition between her and Muthaiah and Rajamma, the wife, son and daughter of Rajanna-after death of Rajanna in the year 1983 or during life time of Rajanna before 1983.

When such is the case, the so called mutation in the year 1985 for S.No.9 only based on Ex.A-1 will for the fiRs.time under Ex.A-2 referring to the will that was not even referred about the will in Ex.A-3 for mutating name of Lasumbai in S.No.28; shows, it is a manipulated entry after the litigation between the parties started if any in the year 1985 or the obtaining with antedate, said document for anticipating litigation or for the case purpose in O.S.No.101 of 1987.

Even a concession was given in the Ex.A-4 judgment of O.S.No.101 of 1987 for Lasumbai to establish her title if any based on so called alleged family arrangement, there is no worth evidence on record that could be produced by Lasumbai as plaintiff in the present suit for declaration of title even from what is discussed above with reference to Exs.A-2 and A-3 filed by her with reference to Exs.B-1 to B-9 relied by her step son Muthaiah and step daughter Rajamma, defendant Nos.1 and 2 of the suit.

13) From this background, it is to be seen that what the plaintiff Lasumbai claimed of the properties are the self-acquired and absolute properties of Rajanna proved false, so also the contest thereunder in this regard to the suit claim, thus it also substantiates the finding of the Court in O.S.No.101 of 1987 covered by Ex.A-4 judgment relied on by her of the properties are proved as ancestral properties and not at all the self-acquired properties of Rajanna.

14) Now, coming to any further material on the alleged oral family arrangement pleaded by Lasumbai as plaintiff in the suit in support of her contest in the written statement with no evidence admittedly in O.S.No.101 of 1987 covered by Ex.A-4 judgment referred supra, even the same is inconsistent regarding the date or month or year regarding the alleged family arrangement when that was effected.

Admittedly either in the previous suit O.S.No.101 of 1987 covered by Ex.A-4 judgment or in her plaint pleadings in the present suit, she did not mention any date of the alleged oral family arrangement muchless month or even of Telugu Almanic or fasli.

In the earlier suit O.S.No.101 of 1987 in her written statement what she contended regarding alleged oral family arrangement was at the cost of repetition what is referred supra that in the life time of Rajanna he settled his properties viz., lands and houses on Muthaiah and Rajamma (son and daughter of 1st wife) and Lasumbai (second wife) in the year 1974 in the following manner.

i) Northern portion land in an extent of Ac.6-16 guntas out of Ac.12-32 guntas of land in survey No.28 of Dasnapur village and 1/3rd portion towards eastern side of land of Ac.1-13 guntas in S.No.9 of Mavala village were settled in the name of the plaintiff.

ii) Southern portion land in an extent of Ac.6-16 guntas out of Ac.12-32 guntas of land in survey No.28 of Dasnapur village and 1/3rd portion of land of Ac.1-13 guntas in S.No.9 of Mavala village and a residential house bearing Panchayat No.4-58 of Savargaon village were settled on the 1st defendant.

iii) The land bearing Survey No.1/84 in an extent of Ac.2-34 guntas situated at Savargaon (Taraf) village, Adilabad Mandal and District and 1/3rd portion of land of Ac.1-13 guntas in S.No.9 of Mavala village were settled on the 2nd defendant.

15) It is her specific plea there from the alleged settlement (that too oral) was only of the year 1974 and by describing the properties of said oral settlement respectively she further stated that they are in exclusive possession and enjoyment of respective properties ever since said family arrangement and late Rajanna also executed a will on 26.07.1974 (marked as Ex.A-1) by way of an abundant caution bequeathing his properties as mentioned above.

Her stress in written statement was Rajanna by arrangement settled his properties; in contending those are the self-acquired properties of Rajanna that too alleged family arrangement just before the will of the same year 1974 and as an abundant caution only he executed the so called will.

It is important here to note what could be the conduct of Rajanna in his so called unilateral action in creating any rights in favour of his son, widowed daughter and second wife in distributing any of his interest in the properties or his any other properties, it should be as a prudent man since his not self-acquired properties even to his knowledge for nothing acquired; but for inherited as coparcenery properties and under Section 6 of Hindu Succession Act to orally divide the half undivided share of him as the other undivided half share is of his son Muthaiah with any provision to his widowed daughter of him that arrangement made by him by any disposal or by any bequeath by any will to take after his life time shall be for his share and not for the entire property.

If at all to non-succeed his son and having taken from right by birth undivided half of the ancestral properties along with him to bequeath his undivided half share in the properties to his second wife and his widowed daughter which was not done.

Once, there was he allegedly chosen to make an oral settlement by alleged family arrangement there is no need of his making any bequeath for it subsequently by registering the same but for suffice if at all to prepare a recital in acknowledgement of the past alleged oral settlement or family arrangement as acknowledgement of past transaction is not an instrument under the Stamp Act as per settled position of law for no need of Stamp duty, muchless registration for no rights to create under the document, but for to preserve as evidence and at best to the revenue authorities and panchayat authorities with that acknowledgement of a past oral transaction document copy by enclosing or with any application by signatures of all of them to mutate respectively mentioning there was so called oral settlement by oral arrangement.

There is something fishy from the above to show a will is brought into existence with an idea carved out from ingenious intelligence from a close and overall reading of the facts and circumstances of the case setting up some right over the properties by some settlement by Rajanna, taking advantage of the then helpless situation of Rajanna under the influence of his second wife Lasumbai and admittedly her brother also residing nearer to the house in the same village even by then instigated if any for the recourse, without that legal knowledge.

It shows the will is brought into existence with propounder influence by Lasumbai and under the suspicious circumstances.

It is also important to note that, for speaking said alleged oral family arrangement of 1974 just before or some days or one or two months before alleged will dated 26.07.1974 there is no other document born by record.

Had it been with an intention even for argument sake for family arrangement there need not be any pre-existing interest or right to share in the properties to all of the family members and even those having no right to share or no right pre-existing can be included to provide some property to avoid any future family disputes or to solve existing family disputes there must be some record and atleast there must be immediate mutation in the panchayat and revenue records of the house property and landed properties to act upon said arrangement.

It was not done admittedly and even from the documents filed and on plaintiff's described supra more particularly Exs.A-1 to A-3 for the fiRs.time with the signatures of Tahsildar in the year 1985 something brought into existence referring to so called registered will of the year 1974, there is alleged oral family arrangement in the year 1974.

In this back ground if we appreciate the factual matrix of the case with other circumstances to say there is no any genuine family arrangement is crystallizing for the following.

In the present appeal impugned suit claim of O.S.No.2 of 1991 plaint pleadings of Lasumbai what she pleaded regarding alleged oral settlement or oral family arrangement that Rajanna in his life time of the lands, house, cattle shed etc., on plaintiffs and defendants 1 and 2 in the year 1974 in the following manner.

16) It is in para-5 and in para-4 she averred that all those are self-acquired properties of Rajanna (which is proved false).In para-5 further averred that ever since the date of family settlement plaintiff and defendants 1 and 2 even in exclusive possession and enjoyment of the respective properties (there is no proof for the same).It is Muttaiah having undivided half share with Rajanna, got more properties by partition and not by family arrangement and to wife of Rajanna there are no special circumstances to give nearly entire half share of Rajanna over family properties.

The other member is widowed daughter, admittedly staying at brother's house i.e., Muttaiah.

It is not even the case of she asked for any provision.

Thus, there are no any circumstances to arrive any family arrangement.

Therefrom, it appeaRs.as Rajanna and his second wife staying at one house and Muttaiah and his sister Rajamma staying separate to them, pending future partition, they might have thought of time being convenient cultivation and enjoyment of income from lands in so taking and cultivating and any ridges formed thereby, that what Muttaiah even deposed; cannot be said the same substantiates alleged oral family arrangement.

The fact that Muthaiah also in Ex.A-4 judgment covered by O.S.No.101 of 1987 referred as deposed in his cross examination that S.No.28 of Dasnapur northern half in his enjoyment and southern in the enjoyment of Lasumbai with a ridge in between separating demarcation of respective enjoyment or it was at the instance of Rajanna to avoid disputes he allowed so to enjoy by Lasumbai muchless out of the extent in the enjoyment of Lasumbai she sold Ac.2-00 to Sanjeeva Reddy and for which no relief setting aside alienation sought by Muthaiah muchless to the 3rd defendant under the alleged agreement by Lasumbai agreed to or executed any sale deed pursuant to it to 3rd defendant or Muthaiah also sold by converted into plots but for few almost to third parties out of the extent in his enjoyment does not mean muchless proof of any oral division or oral family arrangement creating rights from respective enjoyment when that is not by any oaster or exclusive enjoyment with animus possessendi but for at best to say the alienees are entitled to work out the equities to the extent entitled out of the respective shares on partition if at all to be ordered in this suit if not by filing separate suit in this regard.

Thus, the observation of the trial Court therefrom for the contention of the plaintiff therefrom in support in the trial Court's judgment disputing the appeal claim no way sustained.

As such any subsequent alienations out of extents enjoyed also of no evidence to corroborate alleged family arrangement for no even mutation affected if at all there was such arrangement to act upon.

17) The theme behind family arrangements is to give finality to family disputes and differences.

As per the Halsbury's laws-a family arrangement is a transaction between members of same family for the benefit of the family generally and to preserve the family property, peace and security in the family, saving of the honour of the family and to avoid family disputes and litigations by amicable arrangements.

Such family arrangements even can be arrived at orally.

Its terms can be even recorded in writing of what has been settled and such a memorandum is for the purpose of being used in future for evidencing the past transaction.

If the family arrangement is only a mere memorandum of past oral family arrangement reduced to writing it does not require stamp duty and registration.

If it is a document by which rights are for the fiRs.time created or title for the fiRs.time declared by the terms of the document-it requires Registration.

That what the law laid down in the expressions relied upon by the Respondents to the appeal vide:AIR-1966-SC-323; AIR-1966-SC-1836; AIR-1955-SC- 481; AIR-1976-SC-807; AIR-1971-SC-1337 & 2003(8)SCC-740.

18) The above expressions also disclose that what all the pre-requisites for family arrangement must be not only resolution of disputes and rival claims but also the members may be parties to the arrangement and must have some antecedent title, claim or interest and even a possible claim in the property which is acknowledged by the parties to the settlement and then even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or title in favour of such a person and acknowledges him to be the owner, then the antecedent title must be assumed under the family arrangement and not to disturb such arrangement.

There is nothing to show Muthaiah consented for such a family arrangement to part with undivided half share over the properties by hearing any word of elders or his father much less his widowed sister Rajamma even to give nearly half share of the properties of Muthaiah to his step mother and no elders even examined and proved for the same if at all taken place allegedly before so called three elders as per plaintiff.

It is thus, not proved about all the members consented to such an arrangement.

It was not even such a case to allot share to the wife even equally with son and husband in the coparcenery properties, which is unknown under the Hindu South India Mithakshara coparcenery to which the parties governed undisputedly.

It is not even her case that it is in recognition of pre-existing right of maintenance, that arises only when husband and wife live separate if at all and not while living together even while he was alive which is not the case.

As there must be some meaning to say widowed daughter was given some right in the property being dependant on the father to maintain from the joint family properties for no means even under Hindu Adoptions and Maintenance Act, but there is no meaning to say wife and husband when living together almost a half share in the properties along with the son given to the wife to belie so called oral family arrangement that too when there is nothing to say any dispute relating to the property muchless not the factual matrix of she contributed anything for purchase of any property from her property or her money earlier used by the joint family for any particular purpose and to compensate, the property was going to be given etc.Having regard to the above by mere citing all the legal position of oral family arrangement can be made and which can be even in anticipation of a dispute and even without any pre-existing right a right in the property can be created etc., from said decisions, the plaintiff cannot contend that there is a family arrangement muchless oral or thereunder, she was given out of Ac.12-31 guntas, the southern half of Ac.6-16 guntas in S.No.28 of Dasnapur village apart from other properties almost at par with the son of Rajanna by name Muthaiah by allotting as if those are separate properties of Rajanna; despite the fact remains and proved that those are the coparcenery properties where Rajanna has no absolute right but for undivided half share along with his son Muthaiah the other coparcener after death of Rajanna's father Ramanna in 1949-50.

19) Here as discussed supra there are no circumstances shown and proved in existence to enter such family oral arrangement and the convenient and time being enjoyment of any of the lands cannot be regarded as proof or corroborative piece of proof to the alleged oral family arrangement.

20) Coming to the next contention of late Rajanna executed the so called will dated 24.07.1974 by way of abundant caution concerned, if at all for abundant caution for oral family arrangement to create document is not by will as if his property to bequeath, but otherwise as stated supra.

Thus, any ridges formed on the lands and Rajanna was separate in mess and living along with plaintiff till his death no way suffice to say, there was oral family settlement and in support of it a registered will deed.

There is no mention even in the trial Court to say from above pleadings in the plaint leave about written statement of the plaintiff herein as defendant in O.S.No.101 of 1987 that the so called will executed was confirming the oral family arrangement.

It is a clear pleading that family arrangement is independent the will with bequests made are independent and however by adding it is as an abundant caution and also by including some other survey No.6 of Mavala village where Rajanna lost possession for over 25 years ago.

That averment is also not true of Rajanna lost possession over S.No.6 of Mavala village 25 years ago for the following that from perusal of Ex.B-2 khaSr.pahani of the year 1954-55 S.No.6 and 9 of Mavala village were shown in the name of Mattapalli Ramanna and for the same as well as S.No.9/A rounding the name of Ramanna, the name of Mattapalli Rajanna noted.

The plaintiff also not produced any evidence to say Rajanna lost possession of specifically that S.No.6 while holding possession of S.No.9 and 9A of Mavala village.

Even Ex.A-2 filed by her of Mavala village pertains to the year 1983- 84 and not any year prior to 1973-74 after 1954-55 to say in making bequeaths in the will additionally for S.No.9 that was not covered by oral family arrangement for the reason of the family lost possession of any of S.No.6.

Even Ex.A-2 nowhere refers the S.No.9A, but for S.No.9 only though Ex.B-2 refers S.No.6, S.No.9 and S.No.9AA.

Thereby it is with no credibility of said version by her in the statement as well as her evidence as P.W-1.

21) From this background now, coming to the so called Ex.A-1 will how far that is proved concerned it is not only sufficient to discuss Section 68 with its proviso of the Indian Evidence Act and Section 63 of the Indian Succession Act, but also what is the basic concept behind the will how the phrase WILL arisen.

The word will arisen from the Latin word Voluntes to mean the expression of intention of a testator generally in a document.

The very testament derived from the Latin word Testatio Mentis to mean testifies determination of the mind.

The dispositions thereunder to the favour of legatees to take effect after demise of said testator.

22) Lord Wilmot, C.J.in Doe Long v.

Laming (2 Burr.

At pp.

11-12) described the intention of the testator as the ".pole star".

and is also described as the ".nectar of the instrument".23) It is meaningless to say in the vain attempt to make believe by the plaintiff in her pleading as well as evidence in chief of P.W-1 that there was an oral arrangement by settlement of the properties which are self-acquired of Rajanna made in 1974 and with no lapse of time to the oral arrangement is an abundant caution he executed said Ex.A-1 registered will by making bequeaths.

It is because it will not serve as any abundant caution for confirmation of recital to alleged oral settlement or family arrangement by bequests in will but for if at all by any family arrangement deed or partition deed if not a simply reducing to record of the so called past oral settlement/family arrangement with no need of stamp and registration.

Even it is taken note of, it shows the intention of Rajanna in executing the document referred as will is not to make any testament, but for if possible only to give life to alleged oral family arrangement.

Thus, the circumstances, under which said Rajanna made the so called bequeath under Ex.A-1 will doubts any of his intention to execute a will making bequeaths much less to serve as a last will and testament.

It is for the reason from what all discussed on the scope of will that, had it been as an abundant caution, he could have executed some other document confirming oral settlement or oral family arrangement to create or to confirm and not by will which is a revocable document at any moment.

Apart from it, he cannot convey the entire property in which 1st defendant his son Muthaiah also got undivided half interest by birth since coparcenery property, to make a bequeath but for if at all under Section 30 of the Hindu Succession Act for the undivided half share in the properties had it be the really intended to make a bequeath for his interest.

Further once there was an alleged oral family arrangement with no claim of right or reserving right or share in him, the question of making any bequeath for non-est interest for any extent over the property muchless for entire property does not arise.

24) Therefore, the very circumstance and facts which leads to the alleged intention of executing a will by making a bequeath by Rajanna are riddled with suspicion and it shows there is a prepounder influence and umpteen of suspicious circumstances shrouded around the so called making of bequeaths by executing the will.

Coming to the proof of will and construction of will and the appreciation of evidence by Court in ascertaining the intention of the testator, the law is well settled.

In this regard the Apex Court held as follows: ".The apex Court settled the principles that are to be taken consideration in construction and proof of wills right from the cases of (1) Ram Gopal V.

Nand Lal AIR1951SC139(2) Gnambal Ammal V.

T.Raju Ayyar AIR1951(SC) 103, (3) Raj Bajrang Bahadur Singh V.

Thakrain Bakhtraj Kuer AIR1953SC7 (4) H.Venkatachala Iyengar V.

B.N.Thimmajamma AIR1959SC443 (5) Rani Purnima Debi V.

Kumar Khagendra Narayan Deb AIR1962SC567(6) Shasi Kumar Banerjee V.

Subodh Kumar Banerjee AIR1964SC529(7) Pearey Lal V.

Rameswar Das AIR1963SC1703and (8) T.V.Kour Case of 1964 SC1323and (9) AIR1965SC not to mention about other decisions including (10) Veerattalingam case of AIR19902201 and (11) PPK Gopalan Nambiar case of AIR1995SC1852that in construing the will, the Court has to ascertain the intention of the testator not only from the contents of the document but also from the surrounding circumstances and the Court also has to put itself into the testators armchair to bear in mind the other matteRs.and construe from the surrounding circumstances, the position of the testator his family relationship, and the dispositions made therein and preference of some other among several legal heirs and considerations in making bequeaths in stead of allowing the estate by intestacy to claim by legal heirs equally.

The above referred in Shashi Kumar Banerjee's case of AIR1964SC529the constitutional bench of the Apex Court clearly held at page-3 531 para - 3 that the mode of proving a will does not oridinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by section 63 of the Indian Succession Act which says the testator shall sign or affix his or her mark to the will or it shall be signed by some other person in the presence and by his direction and the will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his or her mark to the will or as seen some other person signed the will in the presence and by the direction of the testator and each of the witnesses shall sign the will in the presence of the testator and Section 68 of the Evidence Act mandates in the case of even non-denial of execution, examination of one attesting witness atleast in proof of the will whether registered or not.

Therefore, the law relating to the manner and onus of proof and also duty cast upon the Court and on the propounder if any, to dispel the suspicious circumstances surrounding execution, if any, required as per the Indian Succession Act and Evidence Act.

The Indian Registration Act Section 18 says that the registration of a will is optional and not compulsorily but for any probability from registration of a will.

Thus, non-registration of 'will' by itself will not bear suspicious circumstances and mere registration will not give genuinety.

The Apex Court constitutional Bench in the above referred decision in para-4 P.531 observed further that, the onus of proving the will is on the propounder by clearing the cloud and by dispelling the suspicious circumstances.

In the absence of suspicious circumstances surrounding the execution of the will, it has to be proved to say suffice the testamentary capacity and of the signature of the testator as required by law to discharge the onus.

Where there are suspicious circumstances, the onus is heavy on the propounder to explain them to the satisfaction of the Court, before the Court accepts the will as genuine and last will and testament.

Where the opponent alleges undue influence, fraud and coercion, after initial burden in proof of the above, the onus shifts upon him to prove the alleged undue influence or fraud or coercion or misrepresentation or the like.

Even whether there are no such pleas, if the circumstances give raise to doubt, it is for the propounder to satisfy the conscience of the Court.

From the above pronouncements, it is clear that the suspicious circumstances may be as to genuineness of the signature of the testator or the contention of the testator's mind or relating to the dispositions made in the will being unnatural or improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free and it is not a free and voluntary disposition.

In such a case, the Court would naturally expect that all legitimate suspicions should be completely removed by the persons relying on the document, before the document is accepted as the last will of the testator.

If the propounder himself takes part in the execution of the will and gets benefit, that is also a suspicious circumstance to be taken into account and the propounder is than required to remove the doubts by clear, cogent and satisfactory evidence.

If the propounder succeeds in removing the suspicious circumstances, then only the Court can accept the will as genuine and duly executed to act upon if it is the last will and testament.

The Apex Court in Uma Devi Nambiar V.

T.C.Sidhan case of (2004).SCC321at para 16 observed that a will is executed to alter the mode of succession and by the very nature of things, it is to result in either reducing or deprive the share of natural heiRs.If a person intends that his or her property to pass his or her natural heiRs.there is no necessity at all for executing a will.

It is for the propounder of the will or the beneficiaries to it to remove all suspicious circumstances relating to any doubt, conjecture or mistrust to clear before accepting the will.

The mere fact that, natural heirs have either excluded totally or lesser share has given to them, that itself is not a suspicious circumstance, especially in a case where the bequests have been made in favour of the offsprings.

It is the duty of the propounder of the will to remove all the suspected features but there must be real germane and valid suspicious features and not fantasy of the doubting mind.

Therefore, the mere proof of dispositions by proving its execution and attestation is not suffice to decide.".

25) Thus, it is not even to alter the mode of succession by making any bequeath entirely to the plaintiff being his second wife in his undivided interest in the property to give any credence of the version of no cordial relation between Rajanna and Muthaiah but for between Rajanna and his second wife Lasumbai, the plaintiff.

26) Further coming to the proof of will, Section 63 of Indian Succession Act reads: ".63.

Execution of unprivileged wills: Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following Rules:- (a) The Testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction fo the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.".

Section 68 of the Indian Evidence Act reads: ".68.

Proof of execution of Document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast 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: Provided that it shall not be necessary to call an attetsting 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 (16 of 1908).unless its execution by the person by whom it purports to have been executed it specifically denied".27) At the cost of repetition and in addition to what is discussed supra, from the combined reading of Section 63 proviso of Indian Succession Act and Section 68 of Indian Evidence Act the execution of the will has to be proved by examination of atleast one of the testator alive irrespective of denial or non- denial as it is not at par with other compulsory attestable documents regarding mode of proof under Section 68 of the Indian Evidence Act by virtue of the proviso to said section.

Here P.W-2 is admittedly not attestor to so called will to speak several facts regarding alleged execution and attestation.

He is only an identifying witness before the Sub-registrar to speak Muthaiah present before the Sub-registrar while registering by Registrar, the identifying witness identified the said person who tendered the document executed for registration as self-same person to identify.

Coming to whether alleged attestors 2 in number as can be seen from the names of attestors mentioned in Ex.A-1 will what P.W-1 deposed (that during life time of her husband Rajanna, out of certain properties owned by him) is in the chief-examination last few lines of her husband executed a will deed about 18 years ago and it was also registered and he handed over the registered document to her and her husband bequeathed the properties under the will in accordance with the settlement arrived earlier and at the time of execution of the will her husband was hale and healthy and he knew the signing in Devanagari script Hindi and he affixed the signature to the will and the will was written by clerk of Advocate Rajeswara Rao, (a muslim) in Urdu who is no more, Ghulam Mohammed, Bojja Rajeswara Rao, Rajeswara Rao teacher were present and they attested the will and Ghulam Mohammed and B.Rajeswara Rao are no more.

In fact the teacher Rajeswara Rao referred by her was P.W-2 subsequently examined by her he was not attestor of the will as can be seen.

A perusal of above chief examination version of P.W-1 speaks as if she was present and witnessed the so called execution in saying her husband signed on the will and it was written by clerk of advocate Rajeswara Rao a muslim in Urdu and B.Rajeswara Rao and Ghulam Mohammed attested the will.

It is not simply filing the will and speaking from contents for saying among the testators referred and the scribe who are alive or not.

It is not even deposed by her though required as to what made him to execute the will at that point of time for her saying as an abundant caution as to how she came to know the same to speak so called intention of attestor of execution as an abundant caution for nothing to say is stated to her either before execution or after execution or while handing over so called registered will or later.

She further deposed that said Ghulam Mohammed was a friend of her husband and B.Rajeswara Rao also known to her husband for his having lands in their village and teacher Rajeswara Rao (P.W-2) also having lands in their village and known to her husband and after execution of the will her husband handed over the will to her and also told their son and daughter and other villagers about the execution.

It is even her version in the evidence for the fiRs.time apart from no plea of so called handed over to her in the presence of son and daughter also by making them known.

She further deposed that he executed the will because he had an apprehension that she would be in trouble if he passed away without leaving any document.

It is meaningless of alleged apprehension is the cause and intention of execution of the will instead of other document had it been an act of ordinary prudent person to give credence on the conduct.

She deposed that after death of her husband she obtained mutation by applying to Tahsildar and after visiting, the Tahsildar in the village and enquired and recorded the properties in her name, apart from her son and daughter and agreed with the family settlement.

Ex.A-2 and A-3 she relied regarding the so called mutation for S.No.28 and S.No.9 referred supra nowhere refers any family arrangement for so believing.

It is not even her case that at that time, she produced the will or given to Tahsildar any copy of it or shown, for saying her son or daughter present or were enquired or there is no objection or did not dispute about alleged will and its existence.

From this evidence coming to her cross-examination regarding nature of properties are that of self-acquired of her husband what she deposed that her husband Rajanna purchased the properties in S.No.28 from a muslim 60 years back with his own income and of Mavala village, properties from a Kapu person even prior to her marriage is with no basis and not supported by any document or revenue record entry and proved false from what is discussed above more particularly of Exs.B-1 to B-9 entries for these properties which show that those are the ancestral properties and not self-acquired of Rajanna.

She deposed regarding the will Ex.A-1 in her cross-examination that her husband executed registered will at Sub-registrar's office and she was not present at the time of execution.

When such is the case how she could say positively the place of execution at Sub- Registrar office.

In the further cross-examination it is deposed that the so called elders referred in her chief examination as so called elders of oral family settlement by name Paderi Shivanna, Neerati Ganganna, Kummari Chinnanna were even alive by the time of execution of Ex.A-1 and she cannot say whether in the will it is mentioned or not that was executed and property was given for her expenses.

She denied the suggestion that her husband did not execute will and it has brought into existence to deprive the defendants 1 and 2 by fabricating the will to the benefit of her brother who is admittedly residing in the same village.

She also denied the suggestion that the suit properties does not belong to her husband and those belongs her father-in-law Ramanna.

She denied the suggestion that no family arrangement or partition spoken by her taken place and it is a false case set up by her.

28) From this, coming to even the evidence of P.W-2 T.Rajeswara Rao, a retired teacher of Adilabad, he deposed that he got ancestral properties at Savargaon and plaintiff's husband Rajanna and his son and daughter Muthaiah and Rajamma are known to him.

He deposed that he knows Rajanna's lands near his lands under his cultivation at Savargaon, he also deposed that Rajanna lands at Dasnapur were divided as per the eldeRs.advise and gave lands to the plaintiff, the 1st defendant and the 2nd defendant by oral arrangement and he told that he execute will deed in favour of the family members by came to his house at an evening and asked him to come to the registrar's office on next day.

In his saying so called panchayat and alleged oral arrangement of Rajanna giving lands to his wife, son and daughter does not even his case he was present as one of the elders of the panchayat and that is not even case of the plaintiff in her evidence as P.W-1 muchless in her pleading and even in the cross-examination dated 21.10.1994 but for stated the three persons as elders of so called oral arrangement of properties, she did not speak about P.W-2 Rajeshwara Rao, retired teacher, as one of the eldeRs.Through his evidence in this regard not even his case of he came to know as if he was present is nothing but exaggeration and to help the plaintiff for one reason or other.

It is from the fundamental principle that trial is a voyage in which truth is in quest and it is the duty of the Court to appreciate the evidence of a witness not only from what he deposed but also the attending facts and circumstances and human probabilities and conduct and by separating grain from chaff when so called oral arrangement deposed by him not even stated date or month or year and his presence if any is not believable for what is discussed and from what he deposed in the cross examination of he was not present at the alleged eldeRs.panchayat for settlement of properties, even coming to his attending at request of Rajanna at the previous day to the Sub-registrar's office, he was admittedly working as teacher by then.

It is not even a case that it is a holiday to school.

It is not even his case when not holiday to Sub-Registrar's office, he applied leave muchless permission to leave the school to go to Sub-registrar's office.

His evidence that he came to know of the so called panchayat and oral settlement of properties by Rajanna 5 years prior to the date of execution of the said will by Rajanna.

If that is the case, the alleged oral family arrangement must be prior to or in the year 1969 as will was in the year 1974 and as per the plaintiff it was only in the year 1974 alleged family settlement taken place.

So, the inconsistency between the two mutually destructive versions not only belies P.Ws 2's evidence is a witness chosen to speak even false things or unknown things to help the plaintiff apart from the same even doubts the plaintiff's version of so called oral settlement in the year 1974 just before the will, if P.W-2's evidence in this regard given any little credence of 5 years prior to the will so called family arrangement made.

There is nothing even deposed about any disputes between the family members for so called family arrangement to settle the properties from such disputes relating to properties.

Admittedly no even any so called elder examined to speak so called oral settlement and as to what made Rajanna to make the oral settlement of the properties as family arrangement in anticipation or in settlement of any disputes.

It is important to note further that even Rajanna called three elders whom he got confidence for alleged oral family settlement of the properties known to them, none of them were called to attest the will or to identify him before Sub-Registrar.

The P.W-2 was not called as elder by Rajanna muchless present if plaintiff's evidence believed of just before the so called will in the same year the so called oral settlement taken place; Then, is it be believed that Rajanna went to P.W-2 on the previous day of execution of the will at the evening and asked to come to Sub-Registrar's Office on the next day.

That too when both are not even villagers with acquaintance but for both got lands in same village from what P.Ws 1 and 2 deposed.

There is nothing for P.W-2 to say what more acquaintance he got with Rajanna for Rajanna calling him by ignoring any of the villagers even to the Sub-Registrar's Office.

P.W-2 in the cross-examination deposed that Rajanna did not purchase any stamp for the will execution even before scribing of the will he was there and Rajeswara Rao, Ghulam Mohammed so called attestors were already there by the time he went there and though the will was drafted between 9.00 A.M to 12.00 noon and Rajanna narrated for what was written by scribe Amarulla Khan a draft and he was unable to say how much time taken for his preparing draft and fair of said will.

He categorically deposed that Rajanna did not say the scribe about any earlier settlement of properties and even Ex.A-1 will nowhere mentioned of the will was read over and explained to the attestor and witnesses.

He categorically deposed that Rajanna does not know writing and reading in Urdu, but for understanding.

It is important to note his version in the cross- examination further that by 1974 he was school teacher with timings 10.00 A.M to 4.00 P.M and lunch hour from 1.00 p.m.to 2.00 p.m and on the alleged date 24.07.1974 he attended the school and he was head master of the school at that time.

It is important to note what he deposed was the draft was prepared between 11.00 A.M to 12.00 noon.

He further deposed that school starts at 10.00 A.M and when he was the head master and attended the school is it believable that even before preparing the draft he having attended the school and attended to the Sub-Registrar's Office at the place where the alleged will scribed before its commencement within no lapse of time between 10.00 to 11.00 A.M.What he deposed is he came to D.T.O Office on official work for passing some bills on that day to speak it was working day and not even holiday to the school.

He deposed further that he had no lands in Dasnapur and he even does not know how many bulls Rajanna have and how much land at Savargaon village and he also does not know how much cattle Rajanna was having and he has not seen who were cultivating the lands at Savargaon village.

If he really attended the school on that day which commences after 10.00 A.M and therefrom when went to official work to the D.T.O office for passing of some bulls, is it believable that after said completion of official work at D.T.O office he went to Sub-Registrar Office even it is within the premises or abutting premises before so called starting of preparation of draft of Ex.A-1 will before 11.00 A.M.In all it shows his presence and witnessing of the will with all details as if and in further chief examination after he went there, the document writer Amarullah Khan prepared the draft to the narration of Rajanna and later the fair and read over and Rajanna agreed the contents as true of the document in Urdu and thereafter Rajanna put his signature in Hindu and even he was present there Rajanna asked him only to identify before Sub-Registrar's Office and not even to attest or asked Rajeswara Rao and Ghulam Mohammed to attest etc., shows he chosen to depose to any extent without any knowledge and truth and his evidence regarding so called witnessing of the so called execution of Rajanna and even not chosen to attest and Rajanna asked only to identify before Sub-Registrar's Office rather than to attest all belies his evidence regarding so called execution of will by Rajanna and it is nothing but an interested testimony for no credibility to be attached to his evidence regarding execution of will or on other aspects regarding so called oral arrangement made by Rajanna 5 years prior to so called will or even giving of details that plaintiff was given northern half of Dasnapur 1/3rd of land at Mavala, door No.3-4 of Kottam, to the 2nd defendant was given of land Savargaon village, 1/3rd in Mavala village.

Even he had no lands at Mavala and Dasnapur and even not visited to speak of those details when not even one of the elders to so called panchayat of settlement by oral family arrangement.

Thus, P.W-2's evidence has no credence on any aspect to prove the so called claim of the plaintiff, which the trial Court failed to note.

29) Once that P.W-2 cannot be believed from no credibility on what he deposed, there is no evidence at all but for self serving testimony of plaintiff as P.W-1 to speak which is also riddled with inconsistencies as discussed supra with no credibility to rely for the so called family arrangement or so called Ex.A-1 document styled as will.

When such is the case, the so called execution of will as if those are the separate properties of Rajanna by Rajanna itself belies the very so called intention of Rajanna to make the bequeaths that too when he is conscious that he is survived by son and the properties are the coparcenery properties in which his son got right by birth having they are inherited from father of Rajanna, the ancestral properties, the question of but for making his undivided share bequeathing entire properties as if his own, had he really executed the will, does not arise; that also a strong circumstance which not only belies the will and the alleged bequest therein and also so called family arrangement besides the will is not proved as required under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act of due execution and attestation but also by examination of at least one of the attester or person acquainted with the signature and hand writing of such of the attestors if died by proof of so called death by any examination of his legal heirs like son or other family member of so called attestor with any death certificate etc., and in the absence of which mere say of they are no more is not enough that too by non-examination of so called scribe even on the so called manner of execution and bringing into existence.

That itself shows the propounder influence of plaintiff Lasumbai at the instance of her brother if any and it is riddled with suspicious circumstance shouldered around, to clear the cloud though the burden lies in due execution, attestation and proof and intention of the attestor by clearing the suspicious circumstances, totally failed to discharge the burden by plaintiff and the so called oral arrangement also belies from what is discussed above.

Once the Ex.A-1 document styled as will not proved as required under Section 63 Indian Succession Act and Section 68 of the Indian Evidence Act as discussed supra, it is not admissible as will.

Even to coming to the contents from the contention of the appellant Muthaiah that the requirements of construing the document as will or lacking for no reserving right to revoke or cancel and to say as last will and testament when it is not a will and to any dispossessions there under besides not duly stamped and not registered for any transfer for not an acknowledgement of past so called oral family arrangement, it cannot be looked into.

In this regard the translated copy of the will deed Ex.A-1 from the (original in Urdu).at page-4 speaks from the last Para while referring Muthaiah son, Rajamma daughter and Lasumbai wife and he become old aged with no hope on life and the three persons are the only heiRs.it further reads: ".therefore I want to make suitable arrangement of the property during my life; hence, I ---------- bequeathed in favour of above mentioned beneficiaries description of which is shown in the particulars of property.

Till my life I will be the owner of the properties referred above and after my demise, according to the particulars of the properties referred above the beneficiaries would be the owners and possessors and shall be entitled for patta in which nobody shall have any kind of right or claim.

If anything raised, that would be null by virtue of this document and during my life time I shall have right to cancel and modify this will deed.

Hence, I have executed this will deed with my sound consciousness, own free will and consent, so that it may be used at the time of need.".

From this even to say the contents speak as will from saying he is the absolute owner and in his life time he got absolute rights with possession and nobody got no right but for after his life time and what it further speaks from the initial words within inverted commas supra of I want make suitable arrangement of the property during my life time and there is no any reference of alleged family arrangement which is suffice to say even for arguments sake for not proved as will the contents to take for any collateral purpose, there is no any reference about alleged earlier family arrangement if at all he made and had it been proved it only speaks thereby to substantiate the conclusion arrived supra of any time being internal arrangement for convenient enjoyment of any extents that what D.W-1 deposed and any subsequent alienations while under enjoyment of respective enjoyments taken conveniently does not suffice to say the alleged family arrangement orally taken place.

Had it been true besides he had no right to make dispossessions under the document Ex.A-1, could have referred atleast the same even to take said statement as relevant of deceased Rajanna under Section 32(2) or (6) read with Section 11 of the Indian Evidence Act.

In fact this document also as discussed supra not proved as even executed by late Rajanna for what all discussed of P.W- 1 was not stated as present at the time of alleged execution and the conclusion supra of she is behind with propounder influence in its bringing into existence thereby the contents even not proved to look into even to said purpose from what all fiRs.defendant as D.W-1 Muthaiah deposed the signatures on the document as that of his father Rajanna and not the contents it will not flow to say from admission of signature contents flow much less execution.

Thereby the finding of the trial Court in this regard without discussing all these material aspects is unsustainable and requires reversal.

30) Once there is no family arrangement and once there is no will proved by law besides no right to land to execute as his own for not even to undivided share as these are the coparcenery ancestral properties, in which Rajanna and his son Muthaiah each got undivided half and after death of Rajanna his half share under Section 6 of the Hindu Succession Act by notional partition goes to the Class-I legal heirs that is the wife-plaintiff, son Muthaiah and widowed daughter Rajamma each entitled to 1/3rd undivided share out of half of the properties as the remaining other half of the coparcenery properties belonged to the 1st defendant i.e., son of Rajanna by birth.

No doubt the appeal is continuation of suit and pending the same, the widowed daughter of Rajanna by name Rajamma being the step daughter of the plaintiff died intestate and it is not the property self acquired of said Rajamma, 2nd defendant; but for succeeded and inherited from her father Rajanna out of coparcenery interest of Rajanna and under Section 15(2) of the Hindu Succession Act, from her death issueless and her husband pre- deceased her and the property inherited from father, it devolved upon the other heirs of father under Section 15(1) clause (d) i.e., Rajanna's wife and son i.e., Lasumbai and Muthaiah equally to say in the properties out of Rajanna's half share (since the widowed daughter of Rajanna died intestate and issueless and her husband predeceased) entitled to equally by his second wife the plaintiff-Lasumbai and Muthaiah-1st defendant to say 1st defendant got 3/4th share and plaintiff got only 1/4th share.

Thus, though it is a suit for declaration based on alleged oral family arrangement since not proved and so called will also since not proved, alternatively declaration of the undivided 1/4th share out of the entire properties of Rajanna in favour of the plaintiff can be granted without need of driving for another suit as per the settled expressions of law including by the Apex Court (within power of the Court under Order LXI Rule 33 C.P.C) vide decisions 2004(6) ALD514and 2011(5) ALT790and the Apex Court's expression including of 1994 referred therein apart from such power of the appellate Court for rendering complete justice between the parties to the lis under Order LXI Rule 33 and 24 C.P.C.Further, it is also from the settled law that from Ac.2-00 of the land in S.No.28 already alienated by Lasumbai in favour of brother of 3rd defendant by name Sanjeeva Reddy as not disputed in the Ex.A-4 judgment filed and for any part of the property alienated in favour of 3rd defendant to the suit by Lasumbai out of S.No.28, under law and equity to the extent of 1/4th share out of the total properties of the coparcenery consisting of Rajanna and Muthaiah in the lands covered by S.No.28 total extent of Ac.12-31 guntas of Dasnapur village, S.No.6, 9 and 9A of Mavala village and S.No.1 and 1E of Savargaon village by allotting the 1/4th share therein; under law of equity in working out the rights between the parties to the extent possible to said alienees can be granted.

Accordingly, a preliminary decree in favour of the plaintiff for 1/4th share out of the properties by working out the equities to the extent possible to be ordered to consider while passing final decree by the trial Court.

Accordingly point No.1 is answered.

31) In the result, the appeal is allowed in part to the extent, while setting aside the trial Court's decree and judgment in granting declaration of title and injunction for entire plaint schedule properties of the present suit in favour of the plaintiff (appeal-1st respondent Lasumbai).however, by holding that as those are part of the joint family properties of 1st defendant who got 3/4th share and the plaintiff got 1/4th share from death of Rajanna and from death of Rajamma respectively, the plaintiff's entitlement is only to that extent so to declare her title with no relief of injunction since undivided, thus by granting preliminary decree for partition for said shares of plaintiff and 1st defendant respectively, so as to enable them to apply for final decree for division of the entire properties in which the plaint schedule are part and in so dividing plaintiff's 1/4th share to consider to the extent possible in the plaint schedule respective items by equity for allotment in S.No.28/1 of Dasnapur village Southern side 1/4th out of the total extent of Ac.12-31 guntas, firstly upon the vendee for Ac.2-00 therein and for any other extent to claim by the 3rd defendant subject to enforcement of the so called contract for sale between plaintiff and said 3rd defendant; so also subject to proof of alienations in other extents to claim such equities by such vendees out of the 1/4th share of the plaintiff while dividing so to allot.

There is no order as to costs in the appeal.

_________________________ Dr.B.SIVA SANKARA RAO, J Date: 23-01-2014

Court	Andhra Pradesh High Court
Decided On	Jan-23-2014
Judge	HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
Appellant	Metpalli Muthai
Respondent	Metpalli Lasum Bai and Other

Metpalli Muthai Vs. Metpalli Lasum Bai and Other - Court Judgment