Judgment:
V.V.S. Rao, J.
1. This is a regular first appeal by defendant Muddana Malleswara Rao @ Karanam Sambasiva Rao against judgment and decree in O.S.No.32 of 1982 declaring that plaintiff/respondent, namely, Karanam Ramaiah and Nagaratnamma Charities, Thimmasamudram village (hereafter called, Trust), is absolute owner of plaint-A schedule properties consisting of four items of immovable assets and for permanent injunction. Be it noted, suit was tried along another suit being O.S.No.110 of 1982 filed by one Muddana Nagendrudu, who is none other than natural father of Sambasiva Rao. The said suit for partition and separate possession of suit schedule properties was dismissed but no appeal is filed against the same. Be it also noted that evidence was recorded in O.S.No.110 of 1982.
2. Before noticing summary of pleadings in the suit a brief account of family relationship between Venkataratnamma and Sambasiva Rao may be noticed. Karanam Ramaiah and his wife Nagaratnamma were issueless couple. They had huge properties. They were generous in donating these properties to religious and charitable purposes. Ramaiah had four sisters, Subbamma, Veeramma, Videhamma and Seshamma. They were married and well-settled in life with good properties. Second sister, Veeramma, was married to Swamy. She had two daughters Venkataratnamma and Venkatasubbamma and a son Venkateswarlu, who married Mangamma. Venkataratnamma was married to one Karanam Ramesh @ Ramaiah, who died in 1928. In 1957, she adopted Muddana Mallesu @ Karanam Sambasiva Rao, who is grandson of her younger sister, Seshamma. In the suit, out of which present appeal arises, dispute is regarding property of Venkataratnamma. An interesting aspect of the matter is that Nagaratnamma, Mangamma and Venkataratnamma, all the three widows, were rich and they donated properties to various charitable purposes. A College known as Veldi Venkateswarlu and Mangamma College was established in Ongole. Properties were also donated to Ramaiah and Nagaratnamma Charities appointing Muddana Bhaskara Rao as hereditary Managing Trustee of the Trust, which filed suit for declaration of title and injunction. With this background, a reference may be made to the pleadings.
3. Karanam Venkataratnamma as mentioned had no children. Her husband had died about 50 years ago. Respondent who claims to be adopted son had strained relationship with Venkataratnamma, who was deceived by her close relatives including Muddana Nagendrudu. She therefore did not trust them. She was residing separately. She had desire to give her property for a charitable and educational purposes. Plaintiff trust was already running educational institutions like VV&M; Degree College at Ongole and Karanam Ramaiah and Nagaratnamma Veterinary Hospital at Thimmasamudram. These institutions received generous donations from Nagaratnamma and Mangamma. Venkataratnamma also executed registered Will on 24.4.1973 in a sound and disposing state of mind, bequeathing her properties for charitable and educational institutions. Muddana Bhaskara Rao and Nagaratnamma were nominated as administrators. After death of Nagaratnamma, Venkataratnamma executed another registered Will on 14.4.1979 modifying earlier Will. All her properties shall vest with plaintiff trust to be managed by Bhaskara Rao. Venkataratnamma died on 19.5.1979 in the house of Bhaskara Rao when he was absent in the village. Defendant tried to take thumb impressions of Venkataratnamma on blank papers, in vain due to resistance by people present. Defendant forcibly took away her dead body together with gold bracelets which she was wearing. A complaint lodged to the Police was registered on 20.5.1979. In pursuance of Will dated 14.4.1979 Bhaskara Rao took possession of properties of late Venkataratnamma except gold bracelets and defendant is not in possession of the properties. Three days prior to filing the suit, defendant declared that properties left behind by Venkataratnamma belong to him and that he would not allow plaintiff trust to cultivate the land. Defendant opposed the suit. His case is as follows. Venkataratnamma adopted him under registered adoption deed dated 23.8.1957. Bhaskara Rao manipulated and brought into existence various Wills and codicils. The wills dated 24.4.1973 and 14.4.1979 are not true, valid and binding on him. Venkataratnamma was not in sound and disposing state of mind when she executed Will dated 14.4.1979. She had no desire to donate her properties to charities. She was inimically disposed towards Mangamma and Nagaratnamma. She had also filed O.S.No.50 of 1953 on the file of Subordinate Court, Bapatla, against her mother Mangamma for declaration that the Will set up by latter is a forged document. She also filed another suit being O.S.No.74 of 1956 on the file of Subordinate Court, Ongole, against Mangamma and Muddana Bhaskara Rao and therefore Venkataratnamma could not have executed Will bequeathing her properties to plaintiff trust. Taking advantage of her ill-health and by using influence on her, Will was brought into existence. When Venkataratnamma denied adoption, defendant had filed suits. Finally High Court decided on 23.12.1969 holding adoption is true and valid, based on which he would be entitled to claim a share in the property. Therefore, Venkataratnam could not have executed Will ignoring rights of defendant, who is adopted son.
In her last days, Venkataratnamma went to her father's house on 16.5.1969. There having come to know about deceitful nature of Bhaskara Rao, she repented and reconciled with defendant, expressed desire to go back to defendant. She also expressed that she would execute a Will giving her property to defendant and accordingly executed her last Will at 3.00 pm on 19.5.1979 in a sound and disposing state of mind. In the said Will she cancelled all her earlier Wills and bequeathed all her property to defendant. She died on 19.5.1979 and was cremated on 20.5.1979. Defendant only performed her obsequies on 02.6.1979. After her death, he took possession of properties and leased out items 1 to 3 of plaint-A schedule to Bodduluri Somaiah and items 4 to 7 to Kommapati Subba Rao and also collected advance lease amount. He denied allegation that plaintiff is in possession of the property. Based on the Will, learned trial Judge framed four issues which were recast on 10.11.1988 as below.
(1) Whether the Will dated 14.4.1979 is true, valid and binding on the defendant?
(2) Whether the Will dated 19.5.1979 is true, valid and binding on the plaintiff?
(3) Whether the plaintiff is entitled for the declaration sought in respect of plaint-A schedule immovable properties?
(4) Whether the plaintiff is entitled for the consequential permanent injunction sought?
(5) Whether the plaintiff is entitled for possession of B schedule movables?
(6) Whether tenants set up by the defendant are necessary parties to the suit?
(7) To what relief? As noticed supra, the evidence was recorded in O.S.No.110 of 1982 which is a suit filed by the father of Sambasiva Rao and his junior maternal aunt. Muddana Bhaskara Rao who represented the plaintiff trust was examined as D.W.1 and Sambasiva Rao was examined as D.W.17. D.W.1 examined D.W.6 and D.W.14, the attestor and scribe of disputed Will. Sambasiva Rao, D.W.17 examined D.W.18, scribe of the Will, dated 16.05.1979. Both the parties also examined other witnesses. The important documents which are relevant as agreed to by the parties are - Ex.B.6, registered Will, dated 14.04.1979 executed by Venkataratnamma in favour of plaintiff Trust; registered adoption deed, dated 23.08.1957, which was marked as Ex.B.146; Ex.B.147, unregistered Will, dated 19.05.1979 set up by defendant Sambasiva Rao and Ex.B.24, which is a copy of Judgment, dated 23.12.1968, of this Court in A.S.Nos.578 and 579 of 1965, which is inter parties.
The trial Court on consideration of oral and documentary evidence came to the conclusion that Ex.B.6, registered Will, is true, valid and binding on the defendant and that unregistered Will, Ex.B.147 set up by defendant is not proved. Findings on other issues are also in favour of plaintiff Trust. The suit was accordingly decreed directing the Court Receiver to deliver the properties to plaintiff trust. The defendant was also directed to deliver plaint 'B' schedule gold bracelets or in the alternative pay an amount of Rs. 3,000/-. Learned Counsel for the appellant/defendant Sri S.V.Sundara Rajan does not seriously challenge the finding of trial Court on issue No. 2 which deals with proof and validity of unregistered Will, Ex.B.147, dated 19.05.1979, set up by Sambasiva Rao, the appellant herein. Except examining D.W.18, who is the scribe, Will was not proved as required under Sections 67 and 68 of the Indian Evidence Act, 1872 and Section 59 of the Indian Succession Act, 1925. Learned Counsel, however, challenged registered Will, dated 14.04.1979, Ex.B.6, which is the basis of plaintiff's case. Here also rightly the learned Counsel does not seriously challenge the proof of the Will. He, however, submits that Ex.B.6 is surrounded by suspicious circumstances and that the plaintiff failed to clear all such suspicious circumstances. Secondly, learned Counsel submits that having regard to registered adoption deed, Ex.B.146, late Venkataratnamma had right to alienate only the half of the property, and therefore, she could not have bequeathed entire property in favour of plaintiff Trust. He submits that Ex.B.6 propounded by plaintiff violates Section 13 of Hindu Adoptions and Maintenance Act, 1956 (the Act, for brevity). Reliance is placed on Sawan Ram v. Kalawanti AIR 1967 SC 1761, B.Venkatamuni v. C.J.Ayodhya Ram Singh AIR 2007 SC 311 : 2007 (2) ALD 35 (SC) and Pinnaka Hanumantha Rao v. Garlapati Dhanalakshmi 2007 (2) ALD 435.
Learned Counsel for respondent/plaintiff submits that when the proof and validity of Ex.B.6 is not in doubt, the question of suspicious circumstances becomes insignificant. Nextly, he submits that under Ex.B.6, Will, Venkataratnamma bequeathed all her properties to plaintiff Trust, and therefore, the question of D.W.1 exercising undue influence on testator could not arise. For the same reason, the Will cannot be thrown out on some perceived unfounded suspicious circumstances. Nextly, he submits that by reason of adoption (Ex.B.146), adopted mother was not divested of her to alienate property. He points out that within a short time after execution of Ex.B.146, differences arose between Venkataratnamma and the defendant leading to animosity, and therefore, Sambasiva Rao was excluded from the decree. He also submits that in view of findings in Ex.B.24, such issue is barred by res judicata. He placed reliance on Ram Piari v. BhagwantAIR 1990 SC 1742 and Crystal Developers v. Smt Asha Lata Ghosh AIR 2004 SC 4980.
The pleadings and submissions before this Court thrown up two points for consideration: (1) Whether Ex.B.6, Will, is surrounded by suspicious circumstances and therefore it is not the last Will of late Venkataratnamma? and (2) Whether adoption agreement if any, in Ex.B.146, divests Venkataratnamma to the extent of half share and therefore, Ex.B.6 Will cannot be given effect to? In Re Point No. 1
4. The law of proof of Will is well settled. The propounder has a heavy burden to show by satisfactory evidence that (i) the Will was signed by testator in a sound and disposing state of mind duly understanding the nature and effect of dispositions and (ii) that the Will was attested by qualified persons. If the Will is proved in accordance with Sections 67 and 68 of Evidence Act and Section 59 of Indian Succession Act, being the last wish the Will is sacrosanct and fullest effect will be given to the same. The law also adds a rider. If the Will is challenged as surrounded by suspicious circumstances or is tainted with use of undue influence, fraud and coercion, heavy burden lies on the challenger to prove initially such suspicious circumstances and then the onus is on the propounder to discharge by proof that there are no such suspicious circumstances (see H.Venkatachala v. B.N.Thimmajamma AIR 1959 SC 443, Indu Bala v. Manindra Chandra AIR 1982 SC 133 and Kalyan Singh v. Chhoti AIR 1990 SC 396).
5. What are the suspicious circumstances? In Indu Bala (supra), it was held that, 'circumstances would be suspicious when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person'. In a recent Judgment in Pinnaka Hanumantha Rao (supra), after referring to a number of precedents, this Court summarized principles with regard to proof of the Will and suspicious circumstances. Principles Nos. 6, 7, 8, 9, 13 and 15 are relevant and read as under.
6. The execution of the Will may be surrounded by suspicious circumstances like,--
(a) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(b) The condition of the testator's mind may be very feeble and debilitated.
(c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons.
(d) The dispositions may not appear to be the result of the testator's free will and mind.
(e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him.
(f) The testator used to sign blank papers.
(g) The Will did not see the light of the day for long.
(h) Incorrect recitals of essential facts.
(i) The unregistered Will challenged as forged comes from the custody of major beneficiary.
7. What circumstances would be regarded as suspicious cannto be precisely defined or exhaustively enumerated and that inevitably would be a question of fact in each case.
8. Each and every circumstance is not a suspicious circumstance and a circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
9. All such legitimate suspicions should be completely removed by the propounder before accepting the document as the last Will of the testator and satisfactory discharge of such initial onus is very heavy and the test of satisfaction of judicial conscience is pivotal in deciding the solemn question.
13. Allegations of exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded have to be proved by the person making such allegations.
15. The registration of the Will by the testator will be a strong circumstance to support the genuineness of the Will, but Will not by itself be sufficient to dispel all suspicions without subjecting the evidence of registration to a close scrutiny.
6. Keeping in view settled principles as above, point of suspicious circumstances needs to be considered. Learned Counsel for appellant points out following suspicious circumstances. (i) Appellant was adopted under Ex.B.146 adoption deed but he was excluded from inheritance without any reason; (ii) Under Ex.B.146 Venkataratnamma bound herself to give half of property to appellant and no reasons were mentioned from excluding him from inheritance; and (iii) Muddana Bhaskara Rao who is managing trustee of plaintiff is also closely related to Venkataratnamma. He exercised undue influence and prevailed on her to execute Ex.B.6 Will whereunder, nominating him as trustee of charities giving total administrative control over the properties bequeathed.
7. Plea of undue influence or coercion attributed to Muddana Bhaskara Rao, D.W.1, is misconceived and has no merit. Indeed as rightly pointed out by learned Counsel for respondent no evidence was let in by defendant to allege these things. It is well settled that when fraud, coercion or undue influence are alleged on the part of propounder of Will burden lies on the person saying so. Secondly property was bequeathed not to Muddana Bhaskara Rao. Disputed Will was executed bequeathing all the properties to plaintiff trust which was already running colleges in different places. It was therefore natural for Venkataratnamma to give administrative control over the property to Muddana Bhaskara Rao not in his personal capacity but as a managing trustee of trust.
8. In addition to the above, there are also circumstances to draw an inference that Venkataratnamma specifically chose to nominate D.W.1 as administrator because of her experience with defendant and her father, who is first plaintiff in O.S.No.110 of 1982 filed against Venkataratnamma. In 1961, Sambasiva Rao as a minor filed suit being O.S. No. 51 of 1961 on the file of the Court of Subordinate Judge, Bapatla (originally the suit was filed as O.S.No.46 of 1960 in Ongole). In addition to these, Sambasiva Rao and his father filed O.S.No.5 of 1961 in Bapatla Court against Venkataratnamma for rendition of accounts. Venkataratnamma also filed O.S.No.95 of 1961 against Sambasiva Rao seeking declaration that adoption deed dated 23.8.1957 is null and void. She alleged that adoption deed was obtained by Muddana Nagendrudu, father of Sambasiva Rao, by fraud and misrepresentation. These three suits were tried together. O.S.Nos.5 and 51 of 1961 filed by Sambasiva Rao and his father were dismissed and other suit, O.S.No.95 of 1961, for declaration that adoption deed is null and void was decreed. The common judgment dated 19.11.1965 was subject matter of A.S.Nos.578 and 579 of 1965 and Transfer Appeal No. 370 of 1967. A Division Bench of this Court disposed of these matters on 23.12.1968. A copy of the said judgment is Ex.B.24.
9. Vide Ex.B.24 this Court partly allowed A.S.No.578 of 1965 arising out of O.S.No.95 of 1961 declaring that Sambasiva Rao was validly adopted by Venkataratnamma and dismissed other reliefs. The litigations which started in 1960 within less than three years of execution of adoption deed, Ex.B.146, would show that relationship between Venkataratnamma and natural father of Sambasiva Rao was strained. Indeed there is evidence on record that Sambasiva Rao never stayed with Venkataratnamma but for a few days, and that Nagendrudu took away his son Sambasiva Rao for the purpose of education. Whether by virtue of a specific clause therein Venkataratnamma had divested half share of property is a separate question. Insofar as first point for consideration is concerned, litigation between the parties immediately after adoption would itself show that no love and affection was left between them. There is no great element of surprise if Sambasiva Rao was excluded from inheritance. If Sambasiva Rao was to inherit property, there was no necessity for Venkataratnamma to execute Ex.B.6 Will. If natural heirs are to inherit the property, there would not be any necessity for execution of Will. Only when natural heirs are to be excluded that owner ordinarily bequeaths by Will. Therefore suspicious circumstances pointed out by learned Counsel for appellant are not abnormal and therefore the submission has to be rejected.
10. Ex.B.6 Will itself contains sufficient reasons for excluding Sambasiva Rao from bequeath. Testator refers to litigation foisted on her by Muddana Nagendrudu and also indicates that documents were created to show as if Sambasiva Rao was adopted son. She also refers to Ex.B.24 and mentions that though High Court held that Sambasiva Rao is adopted son, he has no right in her property. Venkataratnamma then expresses that she does not want that property should be inherited by relatives and that after her death property should be used for charitable purposes and for that purpose D.W.1 was appointed as administrator. In view of clear reasons for excluding defendant, there is nothing surprising if defendant is excluded from Ex.B.6 Will.
11. When the matter was pending before trial Court, defendant did not raise plea of suspicious circumstances. Only objection was that D.W.1 played fraud and misrepresentation in obtaining Ex.B.6 Will and getting himself appointed as administrator. Even on this defendant did not take any steps to lead evidence. Whether a Will is surrounded by suspicious circumstances, is essentially a question of fact and then a matter of inference on probabilities. Suspicious circumstances cannot be considered in vacuum in the absence of any evidence on record. Therefore, on point No. 1 this Court holds that Ex.B.6 is not surrounded by any suspicious circumstances, that it is validly executed and that it is last Will and testament of late Venkataratnamma. In Re Point No. 2
12. Under customary law of adoption prior to coming into force of Hindu Adoptions and Maintenance Act, 1956, an adopted son becomes nearest heir of the adopted father and as a necessary corollary inherits the property. Even when a Hindu widow adopts a male child to secure spiritual benefit to the adopter and to secure a heir to perpetuate the adopter's name, such adoption relates back to the date of death of husband of widow. Therefore, even if during period between date of death of husband and date of adoption by widow lineal descendants inherit the property by survivorship, it is considered to be provisional. A Division Bench of this Court in Hanumantha Rao v. Hanumayya 1964 (1) AnWR 156 considered this aspect of the matter and observed thus:
13. The question of divesting of an estate by adoption can never arise when an adoption is made by a male in his life-time; for, in that case, his estate vests, on his death, in the adopted son as his nearest heir, and it cannot vest in any other person. But when an adoption is made by a widow after her husband's death, it may be that his estate is, at the date of adoption vested in the widow as his heir or it may be that it has passed to others and vested in them. The vesting of the property on the death of the last holder in someone other than the adoptive widow, be it either another coparcener of the joint family, or an outsider claiming by reverter or by inheritance under a special rule of succession, is only provisional. So far as the continuity of the line is concerned, the adopted son's rights are similar in all respects to those of a natural born son except that he cannot question to some extent the prior alienations and in competition with a subsequently born son, he takes a lesser share. Subject to these exceptions, the adopted son displaces the titles of all those who held the property prior to the adoption. The intermediate vesting of the property is treated as provisional and the emergence of an adopted son with a superior title divests the estate which is vested in them.
14. The above principle of Mitakshara law has been abrogated by Hindu Adoptions Act. Indeed, Section 4 of the Act gives overriding effect and declares all existing principles of Hindu Law dealing with adoption inoperative. Sections 12 and 13 of the Act may at this stage be read, which are as follows.
12. Effects of adoption:- An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be served and replaced by those created by the adoption in the adoptive family;
Provided that-
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
13. Right of adoptive parents to dispose of their properties:- Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by Will.
In terms of Section 12 of the Act, with effect from the date of adoption of an adopted child shall be deemed to be the child of adoptive father or mother for all purposes. But the adopted child shall not divest any person of any estate vested in adoptive father or mother before adoption. That is to say, if the adoptive father or mother have made certain alienations by way of gift or sale, as a result of which, a third party acquired rights to the property, the adoption shall not divest such title of the third party. Similarly, if by reason of operation of any other law, a Hindu widow is vested with certain properties, which she enjoys even before adopting a child, the latter shall not divest even adoptive mother of her rights in property; which vested in him before the adoption.
The principle as above found in the proviso (c) to Section 12 of the Act is further made clear in Section 13 of the Act. It is to the effect that an adoption does not deprive the adoptive father or mother of the power to dispose of property by transfer inter vivos or by Will. Learned Counsel, however, submits that the right under Section 13 of the Act to dispose of property by transfer inter vivos or by Will is subject to any agreement to the contrary. According to him, Ex.B.146, adoption deed, contains a clause restricting the right of Venkataratnamma to dispose of the property by Will. The submission, however, cannot be considered as meritorious. The reasons are as follows. There is no separate agreement executed by Venkataratnamma subsequent to Ex.B.146 agreeing to retain the right to dispose of only in respect of half property. Ex.B.146 also does not contain any unconditional covenant binding Venkataratnamma to suffer the bar. In Ex.B.146, the relevant portion (as extended in Ex.B.24) reads as under.
I took you in adoption at 6.35 am on 23.08.1957 corresponding ... ... ... according to Hindu Dharma Sastras ... ... ... with the consent of elders we gave you the name, Sambasiva Rao. Hence, from now onwards, you yourself shall become the son of my husband treated on part of Aurasa son with the name of Sambasiva Rao you will become Karta of the entire property belonging to my husband and being maintained, growing up and become family member and see that my husband's annual ceremonies and Gaya Sradha be performed and maintain me during my life time and to perform my funeral rights. If I feel that you have not properly maintained me during my life time, the time of your majority I can take half share from the properties belonging to us and enjoy the same till my life time without effecting any alienation. Afterwards, you yourself can enjoy the same as you please with absolute rights.
The above clause does not even remotely suggest that it operates as an agreement dealing with the right of Venkataratnamma under Section 13 of the Act. Ex.B.146 was subject matter of O.S.No.95 of 1961, which was filed by Venkataratnamma for declaration that it is null and void. The suit was decreed but the High Court in A.S.No.578 of 1965 reversed the lower Court Judgment. this Court considered validity of adoption and also right of Sambasiva Rao to become owner of the suit property. this Court rejected and negatived the claim that he has become owner of the property clearly stating that adoption deed does not divest Venkataratnamma as an absolute owner of the property. The relevant observations of Division Bench are as follows.
The plaint has also asked for specific performance of the agreement to convey the suit property to him. We have held that there was no agreement prior to adoption. Ex.A.1 does not contain any agreement to convey property. There is, therefore, no agreement which can be specifically enforced. We therefore hold that:
(1) the plaintiff was validly adopted;
(2) the adoption does not divest the property vested in the first defendant as an absolute owner;
(3) no rights have been created in the plaintiff by virtue of Ex.A.1.
(4) defendant No. 1 is not estopped from denying the title of the plaintiff;
(5) the plaintiff is not entitled to any specific performance of the agreement to convey the property in his favour; and
(6) the question whether the 1st defendant takes half of the property subject to the agreement not to alienate the same being premature, does not arise.
The above finding also operates as res judicata being a decision between Venkataratnamma (from whom plaintiff Trust claims property) and Sambasiva Rao. As rightly pointed out by learned Counsel for respondent, though in Ex.B.24, this Court left the question open, Sambasiva Rao did not file a separate suit and by reason of Section 27 of Limitation Act, 1963, the right if any got extinguished. Therefore, this Court holds that Ex.B.146 cannot be treated as an agreement restricting right of Venkataratnamma. The point is accordingly held against appellant/defendant. In view of the points considered as above, the appeal fails. The judgment and decree of the lower Court are confirmed and the appeal is dismissed with costs.