N. Srihari S/O. Late Balarajaiah Goud (Died) and ors. Vs. N. Prakash S/O. Sathaiah Goud and ors. - Court Judgment

G. Yethirajulu, J.

1. This Appeal has been preferred by defendants in O.S. No. 456 of 1984. The respondents herein are the plaintiffs in the said suit. The suit was filed for partition of the suit schedule properties into two shares and to deliver possession of one such share and for profits.

2. The averments of the plaint filed by the plaintiffs are briefly as follows:

The plaintiffs are the sons of Nemuri Sathaiah Goud. Sathaiah Goud is the son of Nemuri Saya Goud. Nemuri Balrajaiah Goud is the brother of Sathaiah Goud who is elder to him. Balrajaiah Goud had two wives viz., (i) Nemuri Pentamma (the first defendant) and (ii) Nemuri Kausalya. Nemuri Pentamma gave birth to five sons through Balrajaiah Goud who are defendants 2 to 6. The first defendant lost her husband Balrajaiah Goud. Nemuri Saya Goud executed a Will on 02-01-1956, wherein he mentioned that an extent of Acs.19.15 guntas covered by Sy. Nos. 284, 285, 290, 292 and 293 situated at Lothukunta village of Alwal Mandal, Ranga Reddy District, were under his protected tenancy and there are other movable properties acquired by himself and his wife Nemuri Chandramma by their joint exertions and hard labour. It is further mentioned that he is bequeathing all movable and immovable properties held by himself and his wife jointly to the first defendant and his wife Nemuri Chandramma. Few months after the execution of the Will, Saya Goud died and the properties covered by the Will came into joint possession and enjoyment of Nemuri Chandramma and the first defendant. Subsequently, Nemuri Chandramma and the first defendant purchased the rights of the pattedar under an unregistered sale deed in respect of the land mentioned in the will and became the absolute owners of the lands mentioned in the Will. They also jointly purchased agricultural lands bearing Sy. Nos. 291 and 602 of Lothukunta Village and were in joint possession and enjoyment of the same. After the death of Nemuri Saya Goud in the year 1956, his eldest son Balrajaiah Goud became the head of the family and exercised great control over his mother Nemuri Chandramma and his younger brother Nemuri Sathaiah Goud. Nemuri Chandramma was an illiterate. She was dominated by Balrajaiah Goud and the first defendant and she became the tool in their hands. In 1969, Balrajaiah Goud and the first defendant made Nemuri Chandramma to execute a release deed purporting to release all her rights in the properties held by her jointly with defendant No. 1 in favour of the defendant No. 1. The said release deed contains false recitals that Smt. Chandramma had only a life interest in the properties. She is absolute owner of half of the properties. Therefore, the release deed is vitiated by fraud, undue influence and coercion exercised by the defendant No. 1 and her husband Balrajaiah Goud. Nemuri Chandramma suffered in the hands of Balrajaiah Goud and his family members. Therefore, she left his house in 1979 and came to live with her younger son Sathaiah Goud at Secunderabad, being unable to bear with the ill-treatment meted out to her. When Nemuri Chandramma was living at Lothukunta under the control of Nemuri Balrajaiah Goud and his sons, the second defendant filed O.S. No. 927 of 1977 on the file of the III Additional Judge, City Civil Court, Secunderabad against his brothers, father, first defendant, his step mother Kausalya and grand mother Nemuri Chandramma for partition claiming that the properties mentioned therein are joint family properties. In course of the legal proceedings, they obtained thumb impressions of Nemuri Chandramma on a written statement, vakalat and other documents and papers without explaining to her the contents of those documents. During the pendency of the suit, Nemuri Balrajaiah Goud died and after his death the defendant No. 2 and his brothers and mother ultimately came to a compromise to which they purported to divide the properties among themselves without concurrence of Nemuri Chandramma. The plaintiffs come to know that after Nemuri Chandramma leaving the house at Lothukunta and lived with her younger son Sathaiah Goud at Secunderabad, defendant No. 2 withdrew O.S. No. 927 of 1977 from the file of the III Additional Judge, City Civil Court, Secunderabad. The compromise between the parties to the suit purporting division of properties do not in any way affect the rights of Nemuri Chandramma in the properties which were owned by her and bequeathed to plaintiffs. Late Chandramma had great love and affection for the plaintiffs and desired that she should make provision for them as the first defendant secured half share from late Saya Goud, therefore, she decided to bequeath her half share of movable and immovable properties got jointly from her husband and self-acquired properties and in furtherance of the said wish, Chandramma executed registered will on 28-09-1979 in a sound disposing state of mind bequeathing her half share in all the movable and immovable properties to the plaintiffs to be enjoyed by them as absolute owners after her death. Nemuri Chandramma subsequently died in the house of Nemuri Sathiah Goud, her younger son, at Maruthi Veedhi, Market Street, Secunderabad on 23-04-1984. As the defendants 1 to 6 are claiming to be in possession of the plaint schedule properties, they were also impleaded in the suit for partition and separate possession of the half share in the plaint schedule properties. Plaintiffs gave notice to the defendant No. 1 requesting her to effect amicable partition of all the plaint schedule properties to avoid unpleasantness of unnecessary legal proceedings and as there was no reply to the notice, plaintiff also got issued a lawyer's notice on 09th July, 1984. To the said notice also the plaintiff did not receive any reply, despite service of the notice on 12-07-1984. The second defendant sent a notice on 08-08-1984 denying the right of the plaintiffs to the plaint schedule properties contending that having executed the release deed, Nemuri Chandramma no longer has any right in the properties possessed by the first defendant. Hence, the suit for partition, possession and mesne profits.

3. The first defendant filed a written statement with the following averments in brief:

The averments of the plaint are not true and plaintiffs are put to strict proof of them. The relationship of the parties is not disputed. Late Saya Goud bequeathed his properties jointly to the first defendant and his wife Nemuri Chandramma and died in the year 1956. After his death, all the properties devolved on his wife Chandramma and the first defendant. They came into joint possession and enjoyment of the properties covered by the will. They became the absolute owners of the lands as mentioned in the Will executed by late Saya Goud. Thereafter, Nemuri Chandramma and the first defendant purchased agricultural lands in Sy. Nos. 284, 285, 290, 291, 292, 293 and 602 situated at Lothukunta Village. Thereafter, late Chandramma executed a release deed in favour of the defendant No. 1, as such the defendant No. 1 has been in continuous possession and enjoyment of the lands as absolute owner. Late Balrajaiah Goud died in 1956. No influence was used for executing release deed by Chandramma. The Will executed by late Saya Goud clearly shows that Nemuri Chandramma had only life interest in the properties and thereafter all the rights in her favour have been relinquished in favour of the first defendant. Release deed executed by Nemuri Chandramma contains false recitals. Nemuri Chandramma never stayed at Maruthi Street, Secunderabad, nor there was any occasion for her to go to stay at the house of Sathaiah Goud permanently. It is a fact that the defendant No. 2 filed the suit covered by O.S. No. 927 of 1977. In the said suit Nemuri Chandramma filed a written statement along with other papers. The contents of the written statement and other documents were explained to Chandramma and she voluntarily signed on them after understanding and admitting the contents as correct. Nemuri Chandramma has no right in the properties to bequeath the same in favour of plaintiffs. There was no occasion for late Chandramma to bequeath her half share in the movable and immovable properties to plaintiffs with free will. The will dated 28-09-1979 said to be executed by late Chandramma is forged one brought into existence by plaintiffs for the purpose of this suit. Nemuri Chandramma never raised any objection during her lifetime though she lived for more than 15 years after the execution of the release deed and before execution of the will dated 28-09-1979 and she never claimed any of the properties. Nemuri Chandramma never disclosed the execution of the will dated 28-09-1979 to anybody as well as plaintiffs despite knowing the fact that the suit is filed against her and others. The Will alleged to be executed by Chandramma on 28-09-1979 was brought into existence after the death of Nemuri Chandramma by forging her thumb impression. Late Chandramma had no right, title or interest in the plaint schedule properties as she relinquished all her rights in the properties in favour of the first defendant, as such, the plaintiffs cannot derive any right by virtue of the alleged will dated 28-09-1979. On receipt of the notice dated 18-06-1984 and 09-07-1984, they orally replied to plaintiffs stating that they have no manner of right and title to claim partition and separate possession of the plaint schedule properties, therefore, the defendants gave no reply. All the plaint schedule properties were partitioned by metes and bounds among the family members and as the suit properties are the exclusive properties of the defendants, they will not come under the category of joint family properties. Late Nemuri Chandramma was aged about 81 years and not in a sound disposing state of mind at the time of execution of the Will dated 28-09-1979. The will alleged to be executed by late Chandramma is neither valid nor binding on the defendants and others. On the other hand, the release deed executed by late Chandramma is binding on the plaintiffs and other family members. Late Chandramma never exercised any rights over the properties in any manner, though the lands were held, possessed and enjoyed by the first defendant and her family after the execution of the release deed, since she relinquished all her rights. The first defendant improved the properties at huge cost and developed the same. In 1979, late Balrajaiah Goud was admitted in the Gandhi Hospital and Chandramma wanted to stay very close to him out of her affection and as house of the Sathaiah Goud is very near to the Hospital, Chandramma stayed for a short time in his house. The plaint schedule property is belonging to the first defendant and other defendants and they have been in possession and enjoyment of the same as absolute owners and possessors to the exclusion of all others from a long time and nobody claimed any right, title or interest in the land. The suit is bad for mis-joinder of parties, therefore, the suit is liable to be dismissed.

4. The third defendant filed a separate written statement with the following averments in brief:

The averments of the plaint are not true and the plaintiffs are put to strict proof of the same. The suit is a frivolous and vexatious one and the suit was engineered by late Sathaiah Goud. Late Saya Goud lived separately from Sathaiah Goud and lived with Balrajaiah Goud till his death. During the lifetime of late Saya Goud, there were tax recovery proceedings against Balrajaiah Goud in connection with the abkari business carried on by him, therefore Saya Goud executed a Will dated 02-01-1956. He made specific mention in the Will that during the lifetime of Chandramma, Pentamma should look after the welfare of Chandramma and the first defendant should spend income from the properties for the welfare and maintenance of both of them. After the death of Saya Goud, the first defendant possessed and managed the estate of the deceased and looked after the welfare and comforts of Chandramma until her death. Late Chandramma never complained during her lifetime and there was no occasion for her to complain any ill-treatment. Chandramma never complained during her lifetime any ill-treatment either by Balrajaiah Goud or defendant No. 1 or their children. While living with Balrajaiah Goud, late Chandramma expressed that her second son Sathaiah Goud had no house for the residence of his family, that though he has no love and affection towards her, when asked, the first defendant about her wish, the first defendant agreed for the proposal and accordingly 2982 square yards of land in one corner of the suit land was given to Sathaiah Goud and later Sathaiah Goud constructed a house similar to the house of the first defendant, but did not live in that house as desired by late Chandramma. Since it is felt that Chandramma is likely to be influenced and persuaded by Sathaiah Goud from time to time to give more and more property to him to the detriment of the first defendant and her children, it was suggested to and agreed by Sathiah and also by Chandramma that Chandramma should execute a release deed giving up all her rights, claims and interests in favour of D1. A piece of land on which the building constructed was agreed to be transferred and settled in the name of Sulochana, the wife of Sathaiah; that Sulochana should execute a deed intending to bind her family disclaiming any interest or share in the properties of Chandamma and the first defendant. In pursuance of the said arrangement by all persons interested, documents were executed on 06-03-1969 and all the three documents were duly registered and attested by the witnesses. Those documents were given effect to by all the parties and were in force without being questioned or disputed for 15 years till the plaintiffs filed the present suit. Chandramma seized to have any manner of right, claim or interest in the properties. The first defendant became the absolute owner by virtue of the documents intervivos and by virtue of her open, continuous, uninterrupted possession and enjoyment of the land. The stay of Chandramma in the house of Sathaiah was not because of ill-treatment by D1 or Balrajaiah Goud. Sathaiah Goud obviously manipulated the Will said to be executed on 28-09-1979. During that period Sthaiah Goud was actually assisting the second defendant and guiding his suit in O.S. No. 927 of 1977. After discharge of Balrajaiah Goud from the hospital, Chandramma also came back to Lothukunta and lived with D1. The recitals of the Will dated 28-09-1979 are not correct and it is a fabricated document. By virtue of execution of the release deed, the rights of Chandramma extinguished even during her lifetime. The suit is, therefore, liable to be dismissed.

5. Defendants 4 to 6 adopted the written statement of third defendant.

6. Defendant No. 12 filed a separate written statement by mentioning that he is the tenant of premises bearing No. 14-35, Lothukunta and was paying rent of Rs. 425/-. As there is dispute in respect of the said property, he will deposit the amount into the Court.

7. Defendants 15, 16 and 17 filed a written statement by contending that these defendants admit execution of a will on 02-01-1956 by Saya Goud bequeathing his properties to his wife Chandramma and the first defendant, denying all the pleas raised in the plaint and required the plaintiffs to pay the strict proof of those allegations and further contended that they are entitled to one share each in the estate of the first defendant who was acquired from her father in law under the will dated 02-01-1956 and the properties subsequently purchased by her from and out of her own funds. All the properties of defendants 2 to 6 are in their possession and they are entitled for a share in the said properties.

8. The other defendants remained ex parte.

9. The plaintiff filed a rejoinder to the written statement denying the allegations made by the defendants and reiterating the averments made in the plaint by giving some more details about the allegations made by them in the plaint.

10. On the basis of the above averments, the lower Court framed the following issues:

1. Whether late Nemuri Chandramma executed a Will on 28-9-1979 during her lifetime?

2. Whether Nemuri Chandramma is possessed only with life interest in the plaint schedule property?

3. Whether there was a prior partition of the plaint schedule property and if so is it binding on the plaintiffs?

4. Whether the suit is not maintainable as alleged in the written statement?

5. Whether defendants 7 to 14 are unnecessarily made parties to the suit?

6. Whether the suit is valued correctly and court fee paid is proper?

7. To what relief?

Additional Issues:

1. Whether the release deed executed by Chandramma on 6-3-1969 was got executed by disclaiming as alleged in para 9 of the rejoinder and what is its effect?

2. Whether Chandramma had any subsisting rights in the plaint schedule properties on 28-09-1979 when the Will was claimed to have been executed by her?

3. Whether the alleged Will dated 28-9-1979 is valid and genuine?

4. Whether Pentamma (defendant No. 1) and her family acquired title to the plaint schedule property by adverse possession as alleged by the defendants?

11. During the course of trial, plaintiffs examined P.Ws.1 to 4 and marked Exs.A1 to A41 and the defendants examined D.Ws.1 to 3 and marked Exs.B1 to B63. The trial Court passed a preliminary decree for partition of half share of the plaintiffs' property specified in the plaint schedule by directing to ascertain the mesne profits separately.

12. Being aggrieved by the judgment of the trial Court dated 08-09-1993, the defendants preferred A.S. No. 78 of 1994 before this High Court and this High Court through judgment dated 07th February, 2005 dismissed the appeal by confirming the preliminary decree passed by the trial Court.

13. Being aggrieved by the judgment of the High Court, the defendants carried the matter to Supreme Court in Civil Appeal No. 1420-1421 of 2008 arising out of SLP (c) Nos. 17808-17809 of 2005 with C.A. Nos. 1422-1429 of 2008 arising out of SLP (c) No. 18481 of 2007, 24682-24683 24682-24683 of 2005, 26425-26426 26425-26426 of 2005, 26429 of 2005 and 23029-23030 23029-23030 of 2007. The Supreme Court disposed of the matter on 19th February, 2008 which was reported in N. Sreehari (D) through L.Rs. and Ors. v. N. Prakash and Ors. : AIR2008SC1548 . In the said judgment, the Supreme Court made the following observations:

13. While considering the claim of the parties, learned trial Judge has also adverted to the Will dated 02-01-1956.

12. Since the common question of law and facts arise in deciding these three issues, these three issues are being dealt together. For deciding these issues, it is necessary to advert to some admitted facts and conditions of parties. The plaintiffs, defendants 2 to 6 and 15 to 17, are the grand children of Saya Goud. Plaintiffs are children of Sathaiah Goud, Defendant No. 1 is the wife of Balarajaiah Goud, Defendants 2 to 6 and 15 to 17 are the children of Balarajaiah Goud and the 1st defendant, defendants, 2 to 5 and 15 to 17, executed a Will dated 02-01-1956 (the execution of the said Will by Saya Goud is not denied or disputed but the contents of the Will are under dispute).

13. Since the Will executed by Saya Goud is not brought on record by either of the contesting parties, evidence available on record has to be considered to find the contents of the Will of Saya Goud. In fact, plaintiffs filed a copy of the Will dated 02-01-1956, executed by Saya Goud along with other documents as document No. 7 with the plaint. But neither side brought that document on record as an exhibit. Neither side took steps to send for the original of the Will, which as per the evidence of DW-1 is in the custody of Andhra Bank.

The Supreme Court further observed:

The above pleadings as well as the discussion by the trial Court clearly show about the existence of earliest Will dated 02-01-1956 executed by Saya Goud. The fact remains that though the plaintiffs themselves placed a certified copy of the said Will, original of the same has not been produced by the defendants. It is their case that the original had been filed in a connected suit being O.S. No. 403 of 1976 filed by Andhra bank. Though steps had been taken by the High Court for transfer of the said document, till its final decision, the same was not reached and ultimately the High Court disposed of the appeal on the basis of the available materials and confirmed the judgment and decree of the trial Court.

14. In view of the fact that the plaintiffs themselves referred to the Will dated 02.01.1956 in their plaint, asserted the same by the contesting defendant in their written statement and specific reference to the same by the trial Court as well as the High Court, in the absence of specific finding as to the Will dated 02-01-1956, we are of the considered view that in the interest of justice, the matter has to go back to the High Court for fresh consideration in respect of the earliest Will dated 02-01-1956.

15. In view of the above conclusion, without going into the merits of the claim made by the parties and without expressing any opinion, we remit the matter to the High Court for fresh disposal. We permit the appellants/contesting defendants to place the original Will dated 02-01-1956 for consideration of the High Court. In case, if the original is not available in view of the earlier proceedings, they are free to place the certified copy of the Will dated 02-01-1956 and in that event, it is for the High Court to consider the same including valid objections to be raised by the other parties in accordance with law. Inasmuch as the appeal is of the year 1994, we request the High Court to dispose of the same afresh in the light of the observations made above by giving priority not later than 30-09-2008. All the parties to the proceedings including the subsequent purchasers are free to place their respective stand and it is for the High Court to consider uninfluenced by any of the observations made above. Till such final decision being taken by the High Court, parties are directed to maintain status quo prevailing as on date. All the appeals are disposed of accordingly. No costs.

In the light of the direction given by the Hon'ble Supreme Court to dispose of the appeal afresh and in the light of the observations made by it, the appeal is restored to its original file.

14. The arguments were heard and the following judgment is delivered:

In the light of the contentions of the parties and in the light of the observations made by the Supreme court, the following are the points for consideration by this Court:

1. Whether the copy of the Will, dated 02-01-1956 filed by the plaintiffs along with the plaint can be received as secondary evidence under Section 65 of the Evidence Act on failure of the defendants to produce the original or certified copy of the Will?

2. Whether Ex.A-7 (Ex.B-64 original), release deed, dated 06-03-1969 executed by Chandramma is not vitiated by fraud, coercion or undue influence and whether it is true valid and binding on the plaintiffs?

3. Whether Chandramma released all her rights in the suit schedule property through Ex.A-7, registered release deed (Ex.B-64 Original), dated 06-03-1969?

4. Whether the plaintiffs can question the validity of the release deed covered by Ex.B-64 (Ex.A-7) in the suit without filing a suit for cancellation of the said document within a period of limitation of three years under Section 59 of the Limitation Act?

5. Whether the pleadings and the compromise in O.S. No. 927 of 1977 between the defendants inter se are helpful to the case of the plaintiffs?

6. What are the rights bequeathed by Saya Goud under the will, dated 02-01-1956 in favour of Chandramma and the first defendant?

7. Whether Ex.A-1 will, dated 28-07-1979 executed by Nemuri Chandramma is true, valid and binding on the defendants and whether Chandramma has any subsisting right in the plaint schedule properties as on the date of said will?

8. Whether Chandramma and the first defendant became the absolute owners of the properties purchased under the two unregistered sale deeds executed by Inamdars?

9. Whether the suit is not maintainable under law?

10. Whether Ex.B-6, registered settlement deed, dated 06-03-1991 has any affect on the rights of both parties?

11. Whether Exs.A-7, B-6 and B-7 executed simultaneously being attested by the plaintiffs' father Sathaiah constitute family arrangement and hence the plaintiffs are not entitled to plead that late Chandramma did not execute the release deed covered by Ex.B-64?

12. Whether Pentamma and her family acquired title to the plaint schedule property by adverse possession?

POINT No. 1:

15. It is the contention of the plaintiffs that Saya Goud executed a will, dated 02-01-1956 bequeathing his protected tenancy rights along with movable and immovable properties in favour of his wife Chandramma and the first defendant. It is also mentioned in the plaint that Chandramma and Pentamma purchased the rights of inamdars under two unregistered sale deeds, dated 08-04-1956 and 22-03-1959.

16. The learned Senior Counsel, Sri Movva Chandra Sekhar Rao, appearing for the Appellants submitted that even according to the plaint, late Saya Goud bequeathed only his protected tenancy rights over the plaint schedule property, he has no title over the property as on the date of execution of the will, therefore, the question of Chandramma and Pentamma becoming absolute owners of the said property does not arise. He further submitted that Chandramma and the first defendant alleged to have purchased the rights of the inamdars under two unregistered sale deeds separately in the years 1956 and 1959 respectively. The defendants also did not dispute the terms of the will, dated 02-01-1956. But the original will was not marked. The terms were not in dispute.

17. The learned Counsel relied on the following decisions:

In Durga Parshad v. Debi Charan : [1979]1SCR873 , the Supreme Court while considering Section 70 of the Succession Act held that the fact that the will was not found despite search at the time of death of the testator in the circumstances is not sufficient to justify a presumption that the will was revoked. In the circumstances of this case particularly having regard to the fact that the respondent who would be interested in destroying the will had an access to the house of the testatrix, the presumption would be that the will was either stolen or misplaced by him or at his instance. The onus lies on the object to prove various circumstances about the tearing or destruction of the will when there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may be well that the will was misplaced or lost or was silenced by interested persons.

Where a Will has been properly executed and registered by the testator but not found at the time of death, the question whether the presumption that the testator has revoked the will can be drawn or not will depend upon the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of Indians. The presumption is rebuttable one and can be rebutted by the slightest possible evidence direct or circumstantial evidence.

The learned Counsel contended that in view of the non-availability of the Will, the copy filed along with the plaint can be marked. In this regard, he relied on the following:

In Mst. Bibi Aisha and Ors. v. The Bihar Subai Sunni Majlis Avaqaf and Ors. : [1969]1SCR417 , the Supreme Court observed: 'Under Section 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document when the original is shown or appear to be in the possession or power of the person against whom the document is sought to be proved, and when after the notice mentioned in Section 66, such person does not produce it. Whether the case falls under Section 65(a) and whether the secondary evidence of the contents of the document is admissible.

In Valluri Jaganmohini Seetharama Lakshmi v. Kopparthi Ramachandra Rao : AIR1994AP284 , a learned Single Judge of this High Court observed: There was ho contention raised by the plaintiff with regard to the genuineness of the will. As such, the plaintiff called upon defendants only to answer the legality of the will insofar as the suit schedule properties are concerned, while approving the rights of the defendants under the will with regard to the rest of the properties. What is more, the plaintiff himself files the certified extracts of the will deeds dt. 30-08-1957 executed by the testator in favour of Seetha Mahalaxmi and dt: 14-10-1980 executed by Seetha Mahalaxmi in favour of the first defendant. An admission in pleadings as to execution of the document dispenses with the necessity of proof of execution even though such document was one required by law to be in certain form or proved in certain way.

18. The Supreme Court also observed that the execution of the will, dated 02-01-1956 by Saya Goud is not denied or disputed, but the contents of the Will are under dispute. The Supreme Court further observed that though the plaintiffs themselves placed certified copy of the said Will, the original of the same has not been produced by the defendants. It is their case that the original has been filed in a connected suit covered by O.S. No. 403 of 1976 filed by Andhra Bank. Though steps have been taken by the High Court for transfer of the said document, the same could not reach the Court till the date of Judgment, therefore, the High Court disposed of the Appeal on the basis of the available material by confirming the Judgment and Decree of the trial Court. The Supreme Court further observed:

in the absence of specific finding as to the Will dated 02-01-1956, we are of the considered view that in the interest of justice, the matter has to go back to the High Court for fresh consideration in respect of the earliest Will dated 02.01.1956.

The Supreme Court also observed:

We permit the appellants/contesting defendants to place the original Will dated 02-01-1956 for consideration of the High Court. In case, if the original is not available in view of the earlier proceedings, they are free to place the certified copy of the Will dated 02-01-1956 and in that event, it is for the High Court to consider the same including valid objections to be raised by other parties in accordance with law.

19. In the light of the observations of the Supreme Court, it has to be considered whether the copy of the Will filed along with the plaint has to be marked. Chapter-V of the Indian Evidence Act (for short 'the Act') deals with the documentary evidence. Section 61 of the Act deals with proof of contents of documents, which reads thus:

61. Proof of contents of documents.-the contents of documents may be proved either by primary or by secondary evidence.

Section 62 of the Act deals with the primary evidence, which reads:

62. Primary evidence.-Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or more of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.-Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.

Section 63 of the Act deals with the secondary evidence, which reads:

63. Secondary evidence.-Secondary evidence means and includes:

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

Section 64 of the Act relates to secondary evidence, which reads as follows:

64. Proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Section 65 of the Act deals with the cases in which secondary evidence relating to documents may be given, which reads as follows:

65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases;

(a) When the original is shown or appears to be in the possession or power- of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; of the person against whom the document is sought to be proved, or of any person out of reach, or not subject to, the process of the Court, or

(b) when the existence, condition, or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily moveable;

(e) when the original is public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India], to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by the person who has examined them, and who is skilled in the examination of such documents.

In para-4 of the plaint, the plaintiffs pleaded as follows:

During his lifetime, the late Nemuri Saya Goud executed a Will on 2-1-1956 under which he mentioned that the lands bearing Survey Nos. 284, 285, 290, 292, 293 admeasuring 19 acres and 15 guntas, situated in Lothukunta, Alwal, Ranga Reddy District were in his protected tenancy and that the other movable properties mentioned therein, were acquired by himself and his wife Nemuri Chandramma and their joint exertions and hard labour. Under the said will, he bequeathed all the properties movable and immovable jointly held by him and his wife, jointly to Nemuri Pentamma, the Defendant No. 1 herein and his wife Nemuri Chandramma.

The first defendant in para-3 of the written statement filed by him averred as follows:

late Nemuri Saya Goud bequeathed his properties, movable and immovable held by him and his wife Nemuri Chandramma jointly to the defendant No. 1 herein and his wife late Nemuri Chandramma.

The third defendant in para-5 of the written statement filed by him mentioned as follows:

Saya Goud executed a will, dated 2-1-1956. Under the said will, he intended to bequeath the said property to the wife of Balraj goud, Pentamma so that her children (sons of Balraj Goud) would benefit from his estate. He however made specific mention in the effective part of the Will to the effect that during the life time of Chandramma, Pentamma should spend the income from the properties for the welfare and maintenance of both, thereby he had safeguarded the well being and maintenance of Chandramma for the rest of her life time by making Pentamma responsible for the same.

In Ex.A-1, there was a reference to the Will, dated 02-01-1956, which reads as follows:

on 02-01-1956 her husband executed a will bequeathing his properties situated in Lothukunta covered by Survey Nos. 284, 285, 290, 292 and 293 of an extent of Acs.19-15 guntas being the protected tenancy lands and gold and cash in favour of the first defendant and herself enjoyed with equal rights.

20. In the deposition of PW-1, he stated that late Saya Goud executed a Will, dated 02-01-1956 in respect of Acs.19-15 guntas in Survey Nos. 284, 285, 290, 292 and 293 along with cash and gold in favour of his wife Chandramma and the first defendant. The Will is in possession of the first defendant. In the will, Saya Goud made a recital that the properties were acquired by him and his wife Chandramma with their earnings. There was no cross-examination contradicting the terms of the Will by any of the defendants. DWs.1 to 3 have no knowledge about the Will executed by late Saya Goud and there is no reference about the said Will in their evidence.

21. It was represented before the Supreme Court that the certified copy of the Will was filed by the plaintiff, but that is not so. Though it is mentioned that it is a copy written by somebody, on seeing the original after verification of the record in O.S. No. 403 of 1976, no such Will was marked as exhibit. The efforts made by the High Court to secure the original will did not fructify as it was not marked in O.S. No. 403 of 1976 and it was also not available in the unmarked documents. On verification of the L.C. record, the unmarked copy of the Will 'is not available, which was said to be filed along with the plaint in the present suit. The Xerox copy of the Will only is available. A copy of a copy, which is not compared with the original, cannot be received as secondary evidence and such copy is inadmissible in evidence as per Illustration (d) of Section 63 of the Evidence Act. A copy not prepared in the manner prescribed in Clause (2) of Section 63 of the Act is only admissible when it has been compared with the original. In the absence of martial to that effect a copy made from a copy has been so compared is not admissible.

22. In the light of the above circumstances, the copy of the will, dated 02-01-1956 cannot be received as secondary evidence, and the copy of the Will filed along with the plaint cannot be marked.

23. This point is answered, accordingly.

POINT Nos. 2 to 6:

24. Ex.B-64, which is the original of Ex.A-7, was filed before this Court. It was written in English language. Late Chandramma was an illiterate and she alleged to have subscribed her thumb impression to the release deed. It is the contention of the plaintiff that Bala Rajaiah Goud and the first defendant dominated the Will of Chandramma and Sathaiah Goud and made them tools in their hands. In the year 1969, the said Nemuri Balarajaiah Goud and the first defendant made Nemuri Chandramma to execute a release deed pertaining to the release of her rights in the properties in favour of defendant No. 1. It is contended by the plaintiffs that the release deed contains false recitals that Chandramma had only a life interest in the properties. They ill-treated her and behaved cruelly towards her. Chandramma suffered sufficiently at the hands of Nemuri Balarajaiah Goud and his family members including defendants 1 to 6 and in the same year, she left the house of Balarajaiah Goud and started living with her son Nemuri Sathaiah Goud at Secunderabad, therefore, the release deed is vitiated by fraud, coercion and undue influence.

25. On the other hand, it is the contention of the defendants that Chandramma executed a release deed in favour of defendant No. 1 and no influence was used for the purpose of executing the said release deed. The Will executed by late Saya Goud clearly shows that late Nemuri Chandramma had only life interest in the properties and thereafter all her rights have been relinquished in favour of the first defendant. As such, it cannot be said that the release deed executed by Nemuri Chandramma contains false recitals. It is further contended by the defendants that the second defendant filed O.S. No. 927 of 1977 for partition of joint family properties including the plaint schedule property against late Chandramma and others. Late Nemuri Chandramma filed a written statement and other papers in the said suit.

26. When it is pleaded by the plaintiffs that the release deed was obtained from Chandramma by fraud, undue influence and coercion, the burden is on the defendants to prove that the said deed was voluntarily executed by Chandramma and the recitals therein are not false. As seen from the contentions of both parties regarding the Will, dated 02-01-1956, whatever rights Saya Goud had, have been bequeathed in favour of Chandramma and the first defendant with equal rights. The defendants did not produce the original covered by Ex.B-64 before the trial Court and no witnesses were examined to prove the circumstances under which Chandramma executed Ex.B-64 release deed. The said document was marked only before the Appellate Court. But, no steps were taken to examine any of the witnesses connected to the document to prove as to why Ex.B-64 was written in English, who translated the contents and explained to Chandramma, whether Chandramma understood the contents of the document and affixed her thumb impression after finding the correctness of the same, whether she affixed her thumb impressions in the presence of the attestors, where it was typed and who prepared it. There was also no evidence as to who were present at the time of execution of the document, where it was executed and on whose instructions, it was prepared etc.

27. It is the contention of the defendants that Exs.A-7, B-6 and B-7 have to be read together for interpreting Ex.A-7 and the said documents were executed on a package deal as per which Chandramma executed the original of Ex.A-7 releasing all her rights in the properties described therein in favour of the first defendant. The cause for execution of the original of Ex.A-7 as per the version of the defendants was that Chandramma executed original of Ex.A-7 in favour of the first defendant to avoid the father of the plaintiffs bringing undue pressure and influence on her to give some property in future in additional to the property given under the original of Ex.B-6. It is contended by the defendants that the original of Ex.B-6 was executed in favour of the mother of the plaintiffs as their father was in Abkari business and the property would be safe if the document is taken in the name of the mother of the plaintiff and that is the reason why both the sons of Chandramma figured as attestors in the three documents. The defendants further contended that in the light of the above document, Chandramma released her rights in all the properties in favour of the first defendant. After the death of Saya Goud, Chandramma and the first defendant came into possession of the suit lands and after execution of the original of Ex.A-7 by Chandramma, the first defendant came into exclusive possession of the lands which is evident from Ex.B-10, copy of the pahani and when the first defendant made an Application for issuing of ownership certificate after the Inams Abolition Act came into force, the first defendant was granted occupancy certificate under Ex.B-14 and she became the exclusive owner of the agricultural lands mentioned in the plaint and her rights cannot be questioned.

28. DW-1, in his evidence, stated that under the Will executed by Saya Goud, he gave jewellery to Chandramma and first defendant and he does not know whether they purchased the suit land with the sale proceeds of jewellery. He does not know whether stamps were purchased on the same day when it was executed. He does not know whether his mother and grandmother jointly purchased the agricultural lands after the death of his grandfather. He also admitted that the suit covered by O.S. No. 927 of 1977 was settled out of Court and a compromise memo was filed to which Chandramma was not a signatory. DW-1 admitted in his evidence that he has not gone through the Will executed by Saya Goud, dated 02-01-1956. There are no other witnesses to speak about the Will executed by Saya Goud. As it is contended by the defendants that Saya Goud executed the Will giving only life interest to Chandramma, the burden is on them to establish that Chandramma got only life interest in the property, but no evidence was adduced to prove the said fact. When they failed to adduce any evidence that late Saya Goud bequeathed only life interest in favour of Chandramma, the lower Court observed that an inference has to be drawn against them.

29. The learned Counsel for the Appellants submitted that when there is a plea of fraud and misrepresentation, the plaintiff has to give specific details in the pleadings in support of the said charge. Mere vague allegation is not sufficient to set aside the cancellation of a registered deed while attributing that the deceased Chandramma acted as a puppet in the hands of Blarajaiah Goud and his family members, therefore, requested to hold that Ex.B-64 is true, valid and binding on the plaintiffs. In support of his contentions, he relied on the following Judgments:

In Neelamsetti Kataji Rao and Ors. v. Regati Ramaraju 2001 (III) ALD 709, a learned single Judge of this Court observed that when there is a charge of fraud and misrepresentation, specific details to be given in the pleadings in support of the said charge. Mere vague allegation is not sufficient in a suit to set aside the cancellation of a registered sale deed filed by the heirs of the deceased-executant, it is not sufficient to say that the deceased was acting as a puppet in the hands of one, who is responsible for getting the sale deed executed in the name of defendants. Further the deceased himself approached the High Court, when the sale deed could not be registered on an objection of land ceiling authorities and obtained the direction from the High Court to register the sale deed. No evidence was adduced to the effect that the fraud or misrepresentation has been played on the deceased. In the circumstances, the said plea cannot be sustained.

In Kuppuswami Chettiar v. A.S.P.A. Arumugam Chettiar and Anr. : [1967]1SCR275 , where the defendant alleged that the deed executed by him was vitiated by misrepresentation, the Supreme Court held that the onus is upon him to establish the plea of misrepresentation. Where there is failure on the part of the defendant to discharge the onus, it can be held that he failed to establish misrepresentation.

Regarding the plea of interpretation or construction of a document, the Appellants' counsel relied on the following decisions:

In Keshav Kumar Swarup v. Flowmore Private Limited : [1994]1SCR148 , the Supreme Court observed:

In interpreting a document the intention of the parties has to be ascertained, if possible from the expressions used therein. More often than not, this causes no difficulty, but if difficulty is felt owing to inarticulate drafting or inadvertence or other causes, the intention may be gathered by reading the entire document and, if so necessary, from other attending circumstances also. If through such a process the intention of the parties can be culled out consistently with the rule of law, the courts are required to take that course.In Ramkishorelal and Anr. v. Makalnarayan : AIR1963SC890 , the Supreme Court observed:

The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of convincing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.Regarding the plea of undue influence, the counsel relied on the following decisions:

In Ladli Parshad v. Karnal Distillery Co. : [1964]1SCR270 the Supreme Court while considering the scope of Order 6 Rule 4 observed as follows:Order 6 Rule 4, Civil P.C., provides, inter alia, that in all cases in which the party pleading relies on undue influence, particulars shall be stated in the pleading. The reason of the rule is: A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.

30. The learned Counsel for the Appellants contended that the plaintiffs cannot question the validity of the release deed covered by Ex.B-64 without filing a separate suit for cancellation of the release deed within the period of limitation of three years under Section 5 of the Limitation Act. He relied on the following Judgments in support of his contention:

In Neelamsetti's case (supra), the A.P. High Court held that the suit for cancellation of sale deed executed by the deceased filed by the heirs of the deceased on the basis of a will executed by the deceased. The limitation for filing the suit for cancellation expired even during the lifetime of the deceased executant as he was aware of it in his lifetime.

The above decision is not applicable to the facts of the present case.

31. When the parties are basing their title on a particular document, there will be a fresh cause of action for the opposite party to dispute the genuineness of the document and when it is disputed, the burden is on the party, who relied on the document, to establish that it is a true and valid document and binding on the opposite party. Therefore, in the present set of circumstances, there is no need for the plaintiffs to file a suit for cancellation of release deed as contended by the defendants.

32. In order to find out whether it can be proved from the other material placed by the parties, it has to be considered whether late Saya Goud gave only life interest in favour of Chandramma. Ex.A-11 is the certified copy of the plaint in O.S. No. 927 of 1977 filed by the second defendant against defendants 1 and 3 to 6 and Balarajaiah Goud and Chandramma. Ex.A-10 is the written statement filed by the sixth defendant in the said suit, who is no other than the first defendant herein, wherein it is mentioned that late Saya Goud did not get any property from his parents and as such whatever he had bequeathed by his Will, dated 02-01-1956 are self-acquired property and as such except the beneficiaries, this defendant and the defendant No. 8, Smt. N. Chandramma, none has any right, interest in the said property nor anyone had any right of inheritance or partition. He bequeathed cash and gold to the defendant Nos. 6 and 8, who purchased the suit lands and constructed the building at Lothukunta, with their earnings from agriculture. She filed a copy of the Will, dated 02-01-1956. In another portion of Ex.A-10, she mentioned that as a matter of fact late Saya Goud has not left any properties except cash and gold. The properties were acquired by this defendant and 8th defendant after the death of Saya Goud.

33. So, from the reading of Ex.A-7 it is disclosing that the first defendant admitted in the earlier suit that Saya Goud left behind only cash and gold and later she and the 8th defendant (first defendant herein) purchased the lands and constructed the building with the earnings from agriculture. It is the contention of the defendants that in order to see that there is no pressure from her second son Saya Goud and plaintiffs to gift any more property, Chandramma executed Exs.A-7, B-6 and B-7 documents. DW-1 stated that the documents were drafted by an Advocate. If the Advocate is instructed about the cause for executing the original of Ex.A-7, he would have incorporated the same in the document. Ex.B-6 discloses that Chandramma and the first defendant are the owners of the land settled on the mother of the plaintiffs and it was given to the plaintiffs' mother in 1962. It is not mentioned in Ex.B-6 that Saya Goud gave only life interest to Chandramma. In Ex.B-64 it was mentioned that Chandramma got only life interest and she is releasing the said interest, as she became old and infirm, in favour of the first defendant on the undertaking given by the first defendant to maintain her throughout her life and to meet her needs and expenses. From the release deed, it is made to understand that whatever rights that were conveyed to Chandramma through the Will, dated 02-01-1956 have been released. But the properties mentioned in the schedule of Ex.B-64 were not bequeathed to Chandramma and the first defendant by Saya Goud under the Will, as some lands were purchased by Chandramma and the first defendant after obtaining permission from the Tahsildar after the death of Saya Goud. Though it is contended by the defendants that Chandramma voluntarily executed Ex.B-64 release deed, it is an undisputed fact that Chandramma was an illiterate and she does not know English language. When the document is in the language unknown to the executant, the burden lies on the person relying on the document to prove that the contents were read over and explained to the executant and the executant understood the contentions and agreed them to be true. There is no evidence adduced by the defendants that Chandramma was explained the purpose of Ex.B-64 before she affixed her thumb impression on it. None of the attestors were examined to prove Ex.B-64, though the burden is on the defendants to prove the said document. The defendants relied on Exs.A-7, B-6 and B-7, B-18 and B-15 to prove that Ex.B-7 was executed by Chandramma out of free will and without undue influence. The plaintiffs relied on the admission made by the third defendant in the written statement, the evidence of DW-1 and documents covered by Exs.A-10, A-11 and A-1 in support of their contention that the rights of Chandramma were not divested. Though the release deed covered by Ex.B-64 is a registered document, the original was not produced before the trial Court. It was summoned and produced before this Court during the pendency of the Appeal. DW-1, in his evidence, to a question as to what was the property bequeathed by Saya Goud under the Will, stated that late Saya Goud gave certain jewellery to his mother and the first defendant and they purchased the lands covered by the suit schedule from the pattedars. In Ex.A-10, written statement filed in O.S. No. 927 of 1977, also the defendants did not refer to Ex.B-64, release deed. He denied a suggestion that in Ex.A-7 Chandramma had set out that she got life interest under the Will of her husband and that she was transferring interest in favour of the first defendant. He also denied a suggestion that in pursuance of Will, the first defendant and Chandramma got equal shares. He also denied a suggestion that through Ex.A-7 the life interest of Chandramma was being released in favour of the first defendant. He also denied a suggestion that the Will executed by Saya Goud reveals that Chandramma had full right in the property, therefore, they were suppressing the Will. The evidence of DW-1 is not corroborated with any other oral or documentary evidence. Even though the Supreme Court pointed out about the non-marking of the Will, the defendants did not take any steps to produce secondary evidence also as contemplated under Sections 63 and 64 of the Act. It is not denied by the plaintiffs that Saya Goud was a protected tenant. Except the protected tenancy rights in the land, he has no immovable property when he died. Saya Goud bequeathed some property to his wife Chandramma and the first defendant through the Will, dated 02-01-1956. After the death of Saya Goud, the first defendant and Chandramma purchased some properties in the suit schedule jointly and were enjoying the joint possession of the properties.

34. The recitals of some of the documents and the pleadings would disclose that the first defendant and Chandramma were given equal rights of late late Saya Goud. The reading of Ex.B-64 discloses that late Saya Goud bequeathed cash and other properties. Chandramma and the first defendant purchased agricultural lands and they are in possession and enjoyment of the same, and made constructions on the lands and that under the Will executed by Saya Goud chandramma got only life interest which was relinquished in favour of the first defendant. The recitals are contradictory to each other. When it is the case that late Saya Goud bequeathed only gold and cash, the question of getting the immovable property does not arise. There is no separate mention as to what properties included in the release deed were purchased by Chandramma and the first defendant. Ex.B-64 was registered as document No. 468/1969. Ex.B-7 disclaimer deed was registered as document No. 469/1969, which was executed in favour of Chandramma and the first defendant. In Ex.B-7 the extent of the land was mentioned as Acs.22-15 guntas, whereas it is contended that Saya Goud executed gift deed in respect of Acs.19-15 guntas. If the contents of Ex.B-64 are correct, Ex.B-7, disclaimer deed, would have been executed in favour of only the first defendant on the ground that Chandramma executed the release deed covered by Ex.B-64 under document No. 468/1969. In Ex.B-7, Sulochana clearly mentioned as follows:

I have no such interest claim or title thereto and in reality the said property belongs to exclusive possession and enjoyment by the beneficial owners namely Chandramma and Pentamma to the said property.

35. This is also giving scope to doubt the genuineness of Ex.B-64. As the disclaimer deed covered by Ex.B-7 is a subsequent one, it would have been carefully drafted. Had the beneficiaries are serious in getting the rights of Chandramma released in favour of the first defendant, this is also one of the factors creating doubt whether Chandramma voluntarily executed Ex.B-64. The version taken by the first defendant in Ex.A-10 in the prior suit is also coming in the way of the assertion of the defendants as she herself asserted that late Saya Goud had not left any property except cash and gold and the properties were acquired by Chandramma and herself after the death of Saya Goud. The agricultural lands mentioned in item No. 7 of schedule-A were purchased by Chandramma and the first defendant from one Krishna Rao on 07-04-1956 and 22-03-1959. The written statement covered by Ex.A-10 filed by the first defendant was adopted by all other sons and Chandramma adopted the written statement marked as Ex.A-12. Ex.B-8 would show that Saya Goud was the protected tenant. Ex.B-9 shows that Chandramma and Pentamma are the occupants of the land.

36. Ex.B-15 the order passed by the Land Reforms Tribunal, Hyderabad (West), dated 30-09-1975 determining that the family of Nemuri Pentamma was consisting of family unit of two members. A reading of Exs.B-15 and B-16 to B-30 would show that Nemuri Balarajaiah Goud was looking after the income tax as well as revenue matters on behalf of Chandramma and Pentamma.

37. In the written statement filed by the third defendant, it was mentioned that Chandramma was living with her elder son Balarajaiah Goud and expressed that her only son be given some piece of land in Lothukunta for construction of a house. The first defendant agreed for the same and to prevent Sathaiah from repeatedly demanding for more and prevent Chandramma from being influenced by such demands from her son, it was suggested that Chandramma should execute release deed giving up her rights, claims and interests in the estate in favour of Pentamma and the land proposed to be given for construction of houses should be settled in the name of Sulochana and Sulochana should execute a deed of disclaimer.

38. When the first defendant and other defendants took a definite stand in Ex.A-10, written statement filed in the partition suit, they cannot be allowed to contend that Chandramma released all her rights under the suit schedule property in favour of the first defendant. It is the evidence of all the witnesses that after the death of her husband, Chandramma was living with the family of Bararajaiah goud except for a brief period when she lived with her only son Sathaiah. Balarajaiah Goud was managing the affairs of the family, therefore, it is reasonable to draw an inference that Chandramma executed Ex.B-64 as suggested by Balarajaiah Goud. As seen from the written statement of the third defendant, Chandramma asked to give some property to Sathaiah to prevent him from repeatedly making such request. She was made to execute the release deed in favour of the first defendant. It was mentioned in Ex.B-6 that from out of the property inherited from Saya Goud, Chandramma and the first defendant gave 2982 square yards to Sulochana. This is one of the strong circumstances to say that it was written on the dictates of Balarajaiah Goud and the first defendant by using undue influence on Chandramma. The recitals in the other documents do not reflect in Ex.B-64, therefore, it can be said that the said document was not out of free will and consent of Chandramma and it is vitiated by fraud and undue influence.

39. These issues are, accordingly, held in favour of the plaintiffs and against the defendants.

POINT No. 7:

40. The plaintiffs are contending that Nemuri Chandramma executed Ex.A1 will dated 28-09-1979 in a sound disposing state of mind bequeathing her half share in all the movable and immovable properties to the plaintiffs to be enjoyed by them as absolute owners after her death. Chandramma died on 23-04-1984, therefore, plaintiffs have become entitled to her half share in all the plaint schedule properties. Since the defendant did not agree to give half share to the plaintiffs, in spite of issuing of legal notice, the plaintiffs were constrained to file the suit for partition and separate possession.

41. The first defendant is contending that Chandramma executed Ex.B64 release deed dated 06-03-1969 releasing her rights over the properties she got from her husband Saya Goud, therefore, from the date of execution of the release deed, the first defendant is in possession and enjoyment of the property with absolute rights. Since Chandramma has no subsisting interest in the suit property after execution of the release deed, nothing remains to bequeath any properties under Ex.A1 will and that Ex.A1 is a fabricated one without knowledge and consent of Chandramma and the plaintiffs did not get any rights under the said will. The third defendant also contended that Ex.A1 will is not true, valid and binding on the defendants.

Regarding the proof of genuineness of the Will, the learned Counsel for the Appellants relied on the following decisions:

Mt. Biro v. Atma Ram AIR 1937 Privy Council 101, H. Venkatachala v. B.N. Thimmajamma : AIR1959SC443 , Purnima Devi v. Khagendra Narayan : [1962]3SCR195 , Navneet Lal v. Gokul : [1976]2SCR924 , A.E.G. Carapiet v. A.Y. Derderian : AIR1961Cal359 , S. Sundaresa Pai and Ors. v. Sumangala T. Pai 2002 (1) ALD 52 (SC), Mrs. Murial Hyden v. Mrs. Dulcie M. Robb : 1991(1)ALT5 , Raj Kumar Deen v. A.S. Din 1996 (4) ALD 651, Eddu Balaiah and Ors. v. Eddu Mallaiah and Ors. 1997 (6) ALD 363, Veeramallayyagari v. Sitaram v. Payala Chandrasekhar : 2001(6)ALD143 , Ramabai Padmakar Patil (Died) through Lrs. v. R. Vishnu Vekhande 2003 (6) ALD 123 (SC), V. Srisailam v. V. Krishna Murthy and Ors. : 2003(1)ALD500 .

In H. Venkatachala's case (supra), the Supreme Court held that the propounder is to adduce satisfactory evidence that the will was signed by the testator that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature on the document out of his free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in giving a finding in favour of the propounder. The propounder of the will is to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicion from the mind of the court by cogent and satisfactory evidence. The other decisions are also on similar lines.

42. In the present case, Ex.A-1, will is not much in dispute. The defendants are contending that the testator had no subsisting right by the date of Ex.A-1 by virtue of execution of Ex.A-7 release deed. The plaintiffs also adduced sufficient evidence to prove the genuineness of the document, therefore, I am convinced that there are no suspicious circumstances to doubt the genuineness of Ex.A-1, Will and it is satisfactorily proved by the plaintiffs that the will is true, valid and executed by the testator in a sound disposing state of mind after understanding the contents of the Will.

43. Since the defendants pleaded that the will is a fabricated one brought into existence without the consent of Chandramma and they also contended that she was not in a sound disposing state of mind, the burden is on the plaintiffs to prove that Ex.A-1 is true, valid and executed by late Chandramma in a sound disposing state of mind and then the burden shifts to the defendants to establish that the Will is not true. Ex.A1 will was executed by Chandramma on 28-09-1979. It was a registered will attested by four persons. There is also an endorsement by the Advocate who got the will prepared as per the instructions of Chandramma and the scribe also subscribed his signature to the will, therefore, the existence of the will as on 28-09-1979 cannot be disputed. In order to test whether there is any force in the contention raised by the defendants I wish to examine the evidence adduced by both parties.

44. PW-1, who is the third plaintiff, in the suit deposed that on 28-09-1979 Chandramma executed a will bequeathing her estate in the suit properties in favour of the plaintiffs. She was in a sound disposing state of mind at the time of execution of the will. The will was also registered during her lifetime. Sri V.V. Narasimha Rao told him that will was drafted by Krishna Murthy, Advocate, and the said Advocate is no more. Chandramma died in 1984. After the death of Chandramma, the other plaintiffs and himself issued notice to the first defendant for partition. When there was no response, the suit was filed. In the cross-examination the defendants could not elicit any favourable information. In the cross-examination he stated that he does not know anything pertaining to Ex.A1 during the life time of Chandramma. Chandramma is an illiterate. Chandramma used to come to their house once in a week or ten days. He denied a suggestion that plaintiffs created Ex.A1 during the period when D1's husband was admitted in Gandhi Hospital.

45. PW-2, the scribe of Ex.A-1, deposed that Chandramma is the maternal aunt of his father-in-law. He used to see Chandramma frequently. She executed Ex.A1 will. One day when he went to see her, she asked him to help her in executing the will in September, 1979. Chandramma was staying with her second son Sathaiah in Maruthi Street, Secunderabad. He approached P.V. Krishna Murthy, Advocate, to consult in the matter. The said Advocate said that Chandramma should give instructions personally. Therefore, he took Chandramma to the Advocate and the Advocate took instructions from Chandramma and dictated a Will to him in Telugu in her presence. The Advocate asked him to prepare a fair will and bring it to him on the next day. He accordingly prepared a fair copy and took it to the Advocate along with Chandramma. The Advocate suggested for Doctor's certificate regarding her physical and mental condition, therefore, he took Chandramma to a Doctor by name Dr. R.B. Patale. The said Doctor examined her and issued a certificate. They went to the Advocate along with the certificate. The Advocate asked to get one or two witnesses. He asked one Balram to come to the office of the Advocate and accordingly he came and on the suggestion of the Advocate, he brought Seshaiah and Sardar Ali and that they all went to the Court and compared. Afterwards, they all went to the Court compound for registration of the will and the Advocate read over the contents of the will to Chandramma, who admitted them to be correct, later she put her thumb impression on the will and under the thumb impression, the Advocate wrote that he read over and explained the contents of the will and signed on it. The attestors attested the Will. Later, he also signed. Chandramma put her thumb impression in their presence and they attested in her presence. They presented the will for registration. The testatrix was identified by Seshaiah and Balaram. Ex.A1 is the said will executed by late Chandramma. The body of the will is in his handwriting. He is the scribe of the will. He also subscribed his signature to the said will. He also attested the will. The mental and physical condition of Chandramma was sound at the time of execution of the will. Chandramma died five years after the execution of Ex.A1. She died at the house of Sathaiah at Secunderabad. The will was executed without the knowledge of anyone including Sathaiah. As per request of Chandramma he did not disclose about the will to anyone during her lifetime. In the cross-examination he stated that he is not accustomed to write documents and for the first time he wrote Ex.A1 will. He wrote the will to the dictation of Sri P.V. Krishna Murthy, Advocate and he took the draft. He further deposed that he did not disclose about Ex.A1 to any other person till the date of evidence. Ex. C1 is his affidavit and it contains his signature. On 26-09-1979, oral request was made and on 27-09-1979 he took Chandramma to the Advocate and on 28-09-1979 Ex.A1 was registered. Chandramma brought two or three papers to Sri Krishna Murthy and after going through those papers, Mr. Murthy dictated the contents of Ex.A1 in Telugu. Without dictation he could not have written Ex.A1. Chandramma and himself stayed in the office of Mr. Murthy for about 1 1/2 hours time in connection with the preparation of the draft will. Prior to the draft of Ex.A1 also, he had acquaintance with Mr. Murthy. The office of Murthy and Narasimha Rao were opposite to each other separated by a road. On 27-09-1979 Mr. Murthy asked him to bring witnesses for attestation of the will deed. When he told that he will bring Balaram as a witness, she did not object to it. P.W.3 is her daughter's son. There are no differences between him and Balarajaiah. The reading of Ex.A1 by Murthy, affixture of thumb impression and attestation took place in the Court compound. By the date of Ex.A1, Chandramma was aged 81 years old. She lost her eye sight. He does not know about the correctness of the recitals of Ex.A1. Whatever was dictated by the Advocate Murthy, he wrote the same. He denied a suggestion that he prepared Ex.A1 at the instance of Sathaiah on the basis of the draft given by Sathaiah. Mr. Murthy was present at the time of registration of Ex.A1. The registration process took place about 2 hours. He denied a suggestion that he is deposing falsely at the instance of Sathaiah.

46. PW-3, who is the grand son of Chandramma, deposed that Chandramma executed the will in the month of September, 1979. P.W.2 asked him to come to the office of P.V. Krishna Murthy, Advocate, as Chandramma had to execute the will. Sri P.V. Krishna Murthy suggested that before getting the will registered, it is better to get a medical certificate about the physical and mental condition of Chandramma. Accordingly, P.W.2 took her to Doctor and he secured the attestors. They all went to the Court compound for registration. P.V. Krishna Murthy read over the will to Chandramm and Chandramma put her thumb impression on it. Sri P.V. Krishna Murthy endorsed on it that he read over and signed it. Four persons attested the Will including himself. Seshaiah attested first and subsequently one Sardar, Chakradhar and himself attested Ex.A1. Chandramma affixed her thumb impression on every page. The will was presented before Sub-Registrar for registration. Seshaiah and himself identified Chandramma before the Registrar and as proof of it he also signed as identifying witness. The physical and mental condition of Chandramma at the time of execution of Ex.A1 will was sound. After putting thumb impression by Chandramma, they subscribed their signatures as attestors. The whereabouts of the Sardar Ali is not known. Sehsaiah attacked with paralysis and he is not in a position to move. Chandramma did not raise any objection when the contents of Ex.A1 will was read over to her. Chandramma was aged about 80 years at the time of execution of Ex.A1. She was having very poor eye-sight. She could identify the people if they go close to her. He did not ask as to why she was executing the will. She did not ask him not to disclose the execution to others. He did not disclose the execution of Ex.A1 to his mother. He denied a suggestion that Chandramma never resided with Sathaiah and he is deposing falsely.

47. PW-4, Srinivasa Reddy, who is practicing as an Advocate, deposed that late Sri P.V. Krishna Murthy, Advocate, was his senior and his father-in-law. Krishna Murthy died in June 1993. The signature marked as Ex.A41 is that of Sri P.V. Krishna Murthy. Ex.A1(b) is in the handwriting of the said Krishna Murthy. He came to give the above evidence at the request of the counsel for the plaintiff. In the cross-examination, he stated that as he worked under Krishna Murthy for a period of three years, he is familiar with the handwriting and signature of Krishna Murthy. He denied a suggestion that Ex.A1(b) and Ex.A41 signature does not belong to P.V. Krishna Murthy. He also denied a suggestion that he is deposing falsehood without knowing the signature of P.V. Krishna Murthy.

48. The evidence adduced by the plaintiffs is corroborative and there are no discrepancies in the evidence of any of the plaintiffs' witnesses. They categorically stated that late Chandramma was in a sound disposing state of mind and she died 4 1/2 years after the execution of Ex.A1. The contents of the documents were explained to Chandramma and she admitted those contents to be true and the witnesses signed in the presence of Chandramma and some of them also signed as identifying witnesses before the Registrar when the document was presented for the purpose of registration.

49. Against the above evidence, though defendants contended that late Chandramma was not in a sound disposing state of mind, did not examine any witnesses to speak about her health and mental condition. Except that the eye sight of Chandramma reduced to some extent, there was no other material to show that she was not in a sound and disposing state of mind or that she affixed her thumb impression without knowing the contents or that she did not affix her thumb impression in the presence of the attestors or the attestors did not subscribe their signatures in the presence of the testator.

50. According to DW-1, Chandramma was living with his parents and she died on 23-04-1984 while residing in their house. Her death was intimated to Gram Panchayat, Alwal and he obtained Ex.B1. The death certificate was issued by the Gram Panchayat, Alwal and that obsequies of Chandramma was performed at his house by the father of the plaintiff. He further stated that Chandramma did not die or reside in the house of plaintiffs from 1979 till her death, as alleged in the plaint. His father did not ill-treat Chandramma. His father was continuously sick on account of the removal of the leg in 1962. In 1979 his father was admitted in Gandhi Hospital and during that period Chandramma used to visit the hospital frequently and since the distance between Lothukunta and Gandhi Hospital is about 10 K.Ms., Chandramma stayed with her second son Sathaiah for some days for convenience and even after the discharge from the hospital, his father was sick and was getting treatment and that the eye sight of Chandramma was poor, she is an illiterate woman and was not identifying people until their identity was disclosed to her. Chandramma did not disclose that she executed any will in favour of plaintiffs. Had she knew about the execution of the will, she would have definitely disclosed the said fact to them. Sathaiah was associated with V.V. Narasimha Rao, Advocate, Secunderabad for more than 20 years and the said Narasimha Rao used to utilize the services of P.V. Krishna Murthy in some cases and P.V. Krishna Murthy was engaged by the father of the plaintiffs to appear before R.D.O. in the proceedings relating to his mother and his wife Sulochana. During cross-examination, he stated that Sri V.V. Narasimha Rao was their Advocate in O.S. No. 403 of 1976 and Surya Guptha was the Advocate for plaintiffs in that suit. He admitted that he was a member of Alwal Gram Panchayat and P.Ws.2 and 3 are his relatives and he denied a suggestion that he managed to get Ex.B1 death certificate for the purpose of suit and the original of Ex.A7.

51. The evidence of DW-2 discloses that after the death of her husband, Chandramma used to live at Lothukunta up to her death and Chandramma did not stay with Sathaiah at Secunderabad. She further stated that she is living at Lothukunta since 20 years and her husband died 20 years back and that Chandramma used to visit hospital during the hospitalization of Balarajaiah. She denied a suggestion that Chandramma used to reside in the house of Sathaiah from 1979 till her death and used to visit Gandhi Hospital from the house of Sathaiah when Balarajaiah was hospitalized.

52. The evidence of DW-3 also discloses that Chandramma was residing with the first defendant till her death. She further stated that her parents-in-law and her husband used to work in the family of the plaintiffs and defendants and that she used to work in the house of Saya Goud and prior to the construction of a house Balarajaiah and Sathaiah lived together jointly in the house of Balarajaiah Goud in separate portions and that house construction was supervised by the Sathaiah. That Balarajaiah Goud was in the Gandhi Hospital for some time and at that time Chandramma was residing at Lothukunta but not at Secunderabad. She denied a suggestion that Chandramma died in the house of Sathaiah at Secunderabad. The evidence of D.Ws.2 and 3 that Chandramma never lived in the house of the plaintiffs is falsified with the admission of D.W.1 that his grand mother was staying with Sathaiah from July, 1979 till about November, 1979 and that during the said period, she used to visit his father Balarajaiah, who was in the Hospital. The evidence of D.W.3 discloses that Chandramma was attending to daily needs by herself almost up to her death in 1984. She did not say that the physical or mental condition of Chandramma was weak by 1979.

53. The learned Counsel for the appellants tried to project that there was pencil writing and overwriting of the endorsement of P.V. Krishna Murthy and that the gap between the lines in the body of the will and the endorsement are varying, that the endorsement was made with a different ink than the ink used for writing the will and that creates any amount of suspicion about the presence of P.V. Krishna Murthy at the time of writing of the will and the making of the endorsement immediately after obtaining thumb impression of the testator. The writing patterns vary from person to person. The body was written by P.W.2 and the endorsement was made by P.V. Krishna Murthy. The ink used for writing the words I.T.I. of Nemuri Chandramma and signatures of some of the attestors is same and the endorsement made by the Advocate was there on the documents by the time it was presented before the Registrar. Had it been made subsequently, the defendants would have obtained a certified copy of the will which would have disclosed that there was no such endorsement by the Advocate at the time of presentation of the document, therefore, though the said plea was taken by the appellants' counsel, I am not convinced that it was made subsequently or that the Advocate was not present at the time of execution of the Ex.A1 will or its presentation.

54. It is the contention of the defendants that Chandramma lived in the house of Balarajaiah from the time of the death of her husband till her death and she never lived in the house of Sathaiah. As per the admitted version of D.W.1, Chandramma lived at the house of Sathaiah from July, 1979 to November, 1979. Had Chandramma is affectionate towards Balrajaiah Goud, had there not been any ill-treatment, had she not left the house of Balrajaiah in 1979, had Chandramma not voluntarily executed Ex.A1 will, had it been obtained by Sathaiah Goud forcibly, nothing prevented Chandramma from revoking Ex.A1 will. If she had no intention to bequeath the properties to the plaintiffs, Chandramma lived for about 4 1/2 years after execution of Ex.A1 Will, nothing prevented her during that period and she would have blurted out at one point or other that she executed Ex.A1 on account of the undue influence used by the father of the plaintiffs or that they played fraud or misrepresentation, but none of the witnesses of the defendants stated whether Chandramma expressed her anguish for obtaining Ex.A1 will by Sathaiah by using undue influence. It is the version of the plaintiffs that when she lived for some time in the house of Balrajaiah, differences arose between D1 and Chandramma as D1 failed to look after Chandramma comfortably. She also might have felt that the plaintiffs were not given any share from out of the property got by her. Therefore, she might have thought it appropriate to execute the will in favour of the plaintiffs vesting her share in favour of plaintiffs after her death. From the above discussion, I have no hesitation to hold that late Chandramma executed Ex.A1 will on 28-09-1979 in a sound disposing state of mind and the said will is true, valid and binding on the defendants.

55. Regarding the question Whether Chandramma had any subsisting right in the plaint schedule properties as on the date of the Ex.A1 will, I have already answered that Ex.B64 release deed was obtained from Chandramma without her knowledge with false recitals and the execution of disclaimer deed by Sulochana subsequent to execution of Ex.B64 release deed mentioning that she is not claiming any rights against the Chandramma and the first defendant is an indication that the release deed has no effect and Chandramma did not release her rights in favour of the first defendant under the said document, therefore, I hold that Chandramma was having subsisting right in the plaint schedule properties as on the date of Ex.A1 which were transferred in favour of the plaintiffs through the said Will.

POINT Nos. 8 and 9:

56. It is contended by the learned Counsel for the Appellants that by virtue of Inams Abolition Act, the land under the protected tenancy of Saya Goud vested with the Government and the landholders had no right to convey any right to Chandramma and the first defendant. It is also contended that under the Inams Abolition Act, the Civil Court has no jurisdiction to entertain the suit and it is for the respective parties to work out their rights before the Tribunal constituted under the Inams Abolition Act.

57. The learned Counsel relied on the following decisions:

In Lokraj v. Kishan Lal 1995 (3) SCC 291, the Supreme Court, while dealing with Tenancy and Land Laws, held as follows:

Consequent to the abolition, the pre-existing right, title and interest of the inamdar or any person having occupation of the inam lands stood divested and vested in the State until re-grant is made. The inamdar, thereby lost the pre-existing right, title and interest in the land. The right to partition itself also has been lost by the statutory operation unless re-grant is made.

But, in a subsequent decision reported in N. Padmamma and Ors. v. S. Ramakrishna Reddy 2008 (6) ALD (SC), the Supreme Court opined that the decision of the Supreme Court in Lokraj's case (supra) has not been correctly rendered, therefore, the matter requires consideration by a Larger Bench. While giving the above direction, the Supreme Court observed that the Judgment in Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee : [1971]3SCR639 , has not been correctly applied in Lokhraj case (Supra), wherein the Court observed:

The Act contemplates resolution of dispute between the Inamdar on the one hand and his lessees and assignees on the other. It does not take into consideration the dispute, if any, inter se amongst the members of the joint family, particularly when as on the date of grant of occupancy right there did not exist any such dispute. The Act contemplates grant of decree for partition. It does not contemplate a case where occupancy right is taken in the name of a person as representing the entire joint family property. Application of doctrine of trust is not contemplated in the said provision. The Act does not create a forum for determination of the rights inter se between the parties claiming under the same title.In view of the above decision, the decision rendered by the Supreme Court in Lokhraj (supra) is not applicable to the facts of the present case as there is dispute inter se among the plaintiffs and the defendants.

58. But, in the present case, the dispute is between the parties in respect of the property said to be bequeathed by late Saya Goud and the proceedings are not against either Government or landholders, therefore, the present suit is maintainable and I do not find any force in the contention of the Appellants that the suit is not maintainable before the Civil Court. Whatever rights they got under the relevant documents are rights that are going to be held by the respective parties against the suit property. As this is not a suit for declaration of title, the question of going into the extent of rights of the respective parties does not arise at this stage.

59. This point is, accordingly, answered against the Appellants/defendants and in favour of the plaintiffs/respondents.

POINT No. I0:

60. As per the material available on record, Chandramma and the first defendant are having equal rights in the plaint schedule properties. They executed the settlement deed covered by Ex.B-6 in favour of the mother of the plaintiffs' to enable Sathaiah Goud to construct a house of his own. It was not disputed by either of the parties and no evidence was adduced questioning the validity of the said document, therefore, Ex.B-6, settlement deed, dated 06-03-1991 is binding on both parties and it is held to be a valid transaction.

POINT No. 11:

61. The learned Counsel for the Appellants contended that as Exs.B-6, B-7 and B-64 are simultaneously executed, it amounts to 'family arrangement'. He further contended that even though the word 'family arrangement' was not used in the documents, the fact that all of them were executed at the same time in pursuance of a family arrangement between the families of two brothers and their mother Chandramma settling the properties among themselves amounts to 'family arrangement'. It is further contended that Chandramma and Pentamma executed the settlement deed covered by Ex.B-6 conveying 2982 square yards of house site in favour of Sulochana and the said Sulochana executed the disclaimer deed covered by Ex.B-7 on the same day admitting that she has no right whatsoever in the suit properties and later Chandramma executed a release deed covered by Ex.B-64 in favour of first defendant. The learned Counsel for the Appellants submitted that all the three documents are executed as a result of family arrangement in order to maintain peace between both the families of Balarajaiah and Sathaiah Goud and the plaintiffs, without giving up the benefit obtained under the family arrangement, cannot plead that the said family arrangement is not binding on them.

62. The learned Counsel for the Appellants relied on the following Judgments regarding the 'family arrangement':

In K. Jayadevan Nair v. Krishna Pillai (Dead) and Ors. : [1996]3SCR810 , the Supreme Court held:It would be obvious that the respondents have had some arrangement; otherwise the appellant would not have had the possession of the property and management thereof. Under these circumstances, we feel that the interests of justice would be met by directing the appellant to retain 1/3rd of the property and surrender the remaining 2/3rd property to the contesting respondents who are the subsequent purchasers from the other family members.

In Kale v. Dy. Director of Consolidation AIR 1976 SC 807, the Supreme Court held:

Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.

In Ram Charan Das v. Girjanandini Devi and Ors. : [1965]3SCR841 , the Supreme Court held:

Court give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter.

63. There is no dispute about the legal position referred above. But, after going through all the documents, there is no mention anywhere as to why the family members agreed to give only 2982 square yards of site to the plaintiffs' family when the suit schedule property is a huge extent. No reason was assigned in any of the documents as to why Sathaiah Goud was discriminated except mentioning that in order to avoid any further demand from Sathaiah Goud, Chandramma executed the settlement deed covered by Ex.A-7. I have already come to a conclusion that Ex.A-7 is not true and valid document and not binding on the plaintiffs. The deed of disclaimer covered by Ex.B-7 is also strengthening the case of the plaintiffs that by the date of Ex.B-7, Chandramma and the first defendant were having equal rights, therefore, the plea of the defendants that the documents covered by Exs.A-7, B-6 and B-7 constituted family arrangement cannot be accepted.

POINT No. 12:

64. It was the contention of both parties that Chandramma and the first defendant were in joint possession and enjoyment of the property. It was also described in the evidence as well as the documents filed by both parties that the plaintiffs are claiming that they are entitled to a share in the property. It is not the contention of the defendants that the plaint schedule property is the exclusive self-acquired property of the first defendant. They are claiming title over the property by virtue of the release deed said to be executed by Chandramma under Ex.A-7. In order to claim title by adverse possession, there must be a specific pleading by the parties, who asserted such right, and there must be sufficient proof to show that they perfected title by adverse possession. In this suit, there is no specific plea and sufficient evidence to prove that the first defendant and her family members acquired title to the plaint schedule property by adverse possession. Therefore, this issue is held against the defendants.

In the result, the Appeal Suit is dismissed directing each party to bear its own costs.