Judgment:
L. Narasimha Reddy, J.
1. Plaintiffs in O.S. No. 235 of 1995 on the file of the I Additional Junior Civil Judge, Bhimavaram are the appellants. The suit was filed for declaration that item No. 2 of the plaint schedule property is their absolute property, and for a perpetual injunction, restraining the 7th respondent herein, from obtaining possession of the said item, either through the process of the Court or otherwise.
2. The trial Court dismissed the suit, through its judgment dated 31- 10-2000. Thereupon, they filed A.S. No. 1 of 2001 in the Court of Senior Civil Judge, Bhimavaram. The appeal was dismissed on 27-09-2004. Hence, this Second Appeal.
3. The appellants are the sons of the 2nd respondent, by name, Venkateswara Rao. The father of the 2nd respondent, Mr.Manikyam, purchased item 1 of the suit schedule property admeasuring 73 cents in R.S. No. 212/4 of Goraganamudi village, through a sale deed, dated 04-05-1963 (Ex.A-1), and item 2, an agricultural land, admeasuring Ac.1.36 1/2 cents in R.S. No. 224, through sale deed, dated 05-09-1966 (Ex.A-2). Item 3 is said to have been purchased by him, through sale deed, dated 21-12-1967 (Ex.A-3).
4. The appellants pleaded that Manikyam executed a Will (Ex.A-5), dated 15-12-1978, creating life interest, in favour of his wife, and vested remainder, in favour of the appellants, in respect of the suit schedule properties. It was pleaded that few days before filing of the suit, the appellants came to know that the 2nd respondent, who was addicted to vices, borrowed a sum of Rs. 15,000/- from the 6th respondent, i.e. State Bank of India, Bhimavaram, by depositing title deeds, in respect of item 2 of the suit schedule property, creating equitable mortgage, and on account of non-payment of the same, O.S. No. 17 of 1988 was filed by the 6th respondent, for recovery of the amount. It was alleged that the 2nd respondent and his sisters, respondents 4 and 5, remained ex parte in that suit, and in the execution of ex parte decree, the 7th respondent, B.Subbarao, became the highest bidder. With this background, they pleaded that the respondents 2, 4 and 5 did not have the right to mortgage the said item of property, much less, the 7th respondent, can derive any title.
5. Respondents 1 to 5 remained ex parte in the suit. The 6th respondent filed a written statement, narrating the facts that led to the filing of O.S. No. 17 of 1988, and E.P. No. 7 of 1993, for execution of the ex parte decree. It was alleged that the present suit is filed with the sole object of preventing the sale of the mortgaged property. It was also alleged that though several proceedings and notices ensued, in respect of the property, the appellants did not raise any objection, at any stage. The genuinity of the Will (Ex.A-5) was disputed, and an objection was raised as to the maintainability of the suit.
6. The main contest in the suit was by the 7th respondent. After repeating the pleadings of the 6th respondent, it was urged that the decree in O.S. No. 17 of 1988 became final, and that in the E.P. No. 7 of 1993, he emerged as the highest bidder for a sum of Rs. 1,01,000/-. He stated that the entire sale amount was deposited and that the instant suit is filed at the instigation of the 2nd respondent. He too denied the genuinity of Ex.A-5, and right and capacity of its executant thereof. The further pleas, such as, limitation, maintainability and res judicata were raised.
7. Sri S.Agastya Sarma, learned counsel for the appellants submits that late Manikyam acquired the 3 items of suit schedule, under Exs.A-1 to A-3, and he executed a Will, Ex.A-5, creating life interest, as regards those items, in favour of his wife and vested remainder in favour of the appellants. He submits that Ex.A-5 was proved by examining the scribe and one of the attestors, and hardly there existed any suspicious circumstances around it. He further submits that the fact that Ex.A-5 was acted upon, is evident from subsequent developments, such as, issuance of pattadar pass book etc., in favour of the appellants, and that the view taken by the Courts below, that Ex.A-5 is not genuine, cannot be sustained in law. He contends that while the trial Court did not frame specific issues, touching on the validity of Ex.A-5, the lower Appellate Court did not formulate any points for discussion. He submits that a valuable item of property, which is the source of livelihood fo! r the appellants, is sought to be acquired by the 7th respondent for a throwaway price. He submit that even though the mortgage of item 2 of the suit schedule property is untenable in law, his clients are ready to clear the said liability, with a view to avoid complications.
8. The appeal is mainly opposed by the 7th respondent. Sri Eemani Srinivas, learned counsel appearing for the 7th respondent submits that Ex.A-5 is a document, which was brought about, at a subsequent stage, with the sole object of defeating the rights of the auction-purchaser. He contends that though the mortgage suit was filed way back in the year 1988, no steps were taken by the appellants on the strength of Ex.A-5, and that they came forward with the present suit; in the year 1995, after the mortgaged item of the property was sold in auction. He also submits that the appellants failed to prove the Will, Ex.A-5, since they failed to explain the suspicious circumstances, surrounding it. He contends that his client deposited the entire consideration, about ten years back, and his rights cannot be defeated at this stage. It is also his case that the second appeal does not involve any substantial question of law, and the concurrent findings recorded by the Courts below cannot be interfered with.
9. Sri V.V.L.N. Sarma, learned counsel for the 6th respondent had adopted the submissions made on behalf of the 7th respondent.
10. The suit was filed for the relief of declaration of title and perpetual injunction, in respect of item 2 of the suit schedule property. The basis of the suit is Ex.A-5. The trial Court framed the following issues:
1. Whether the plaintiffs are entitled to the declaration as prayed for?
2. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
3. Whether the suit is bad for non-joinder of proper and necessary parties?
4. To what relief?
11. The 2nd appellant was examined as PW-1; the scribe of Ex.A-5 as PW- 2, and an attesting witness as PW-3. Exs.A-1 and A-3 are the sale deeds through which, the suit schedule properties were acquired. Ex.A-4 is the order of the settlement officer. Ex.A-5 is the Will, dated 15-12-1978. Manikyam, the executant of the Will is said to have died on 25-6-1979. Exs.A-6 and A-7 are the death certificate and extract from the register, respectively. Exs.A-8 to A-10 are receipts for land revenue. Exs.A-14 to A-29 are pattedar pass-books and title deeds, in relation to the suit schedule items. On behalf of the 6th respondent DW-1 was examined. The 7th respondent deposed as DW-2. The 7th respondent examined DW-3, with a view to disprove the contention of the appellants, that their father, the 2nd respondent, had illicit intimacy with another woman. Ex.B-1 is the certified copy of the final decree in O.S. No. 17 of 1988.
12. The controversy between the parties rested mostly upon the genuinity or otherwise of the Will, Ex.A-5. If it is held proved, it emerges that the 2nd respondent did not have the right to mortgage item 2 of the suit schedule property to the 6th respondent. Thereby, the entire proceedings initiated in O.S. No. 17 of 1988, either become untenable, or not binding upon the appellants. On the other hand, if Ex.A-5 is held not proved, the further steps in pursuance of the execution of the sale need to be proceeded with.
13. In this background, the trial Court ought to have framed a specific issue as to whether Ex.A-5 is proved. However, in view of the fact that an independent issue is framed as to the entitlement of the appellants for a declaratory relief, omission to frame an issue, exclusively, in relation to Ex.A-5, cannot be treated as any material irregularity. Further, the trial Court extensively dealt with the contentions of the parties, touching on Ex.A-5, under question No.1. Similarly, the lower appellate Court framed only one point about the entitlement of the appellants for a declaratory relief. Whatever may have been the consequence of failure to frame independent issues, in view of the judgment of this Court in Gorrela Durga Vara Prasada Rao v. Indukuri Rama Raju, : 2002(2)ALT589 , it cannot be treated as a serious infirmity, since that Court had undertaken discussions on all the contentions, urged by the parties.
14. In this second appeal, the points that arise for consideration are:
a) Whether the Will, Ex.A-5, dated 15-12-1978, is genuine, and
b) Whether the decree in O.S. No. 17 of 1988 is binding upon the appellants.
15. Before the discussion on the points framed above is undertaken, a preliminary aspect needs to be dealt with. At the commencement of the hearing of the second appeal, a doubt emerged, as to whether an independent suit was maintainable, at all, for adjudication of rights of third parties, in relation to a decree. This was in the context of the prohibition contained in Section 47 and Rule 101 of Order 21 C.P.C. In the ordinary course of things, any objections, raised by third parties, are required to be raised by filing applications under Rules 58, 97 or 99 of Order 21, r/w Sec. 47 C.P.C. However, a perusal of sub-rule (4) of Rule 92 of Order 21 discloses that it is permissible, to file a suit, challenging the very title of the judgment-debtor, to the properties involved in the matter. The only condition is that the auction-purchaser, the decree-holder and judgment-debtor shall be made parties to it. The provision reads as under:
'Section 92(4): Where a third party challenges the judgment-debtor's title by filing a suit against the auction-purchaser, the decree-holder and the judgment- debtor shall be necessary parties to the suit.'
16. In the instant case, the appellants have challenged the very entitlement of the respondents 2, 4 and 5, to mortgage item 2 of the suit schedule property. They have impleaded, not only the judgment-debtors, but also the decree-holder, viz., respondent No.6, and the auction-purchaser i.e. the 7th respondent. Therefore, there does not exist any infirmity as to the maintainability of the suit.
17. Items 1 to 3 of the suit schedule properties were acquired by late Manikyam, through Exs.A-1 to A-3. Respondent No.2 is his son, and respondent Nos.4 and 5 are his daughters. The 2nd respondent obtained loan for a sum of Rs. 15,000/- from the 6th respondent, by creating equitable mortgage against item 2 of the suit schedule. Respondents 4 and 5 appear to have joined as parties in the mortgage deed. Since the amount was not paid within the stipulated time, the 6th respondent filed O.S. No. 17 of 1988 in the Court of the Subordinate Judge, Bhimavaram. Initially, a preliminary decree was passed and thereafter, a final decree ensued on 18-06-1990 in I.A. No. 1508 of 1989. The auction of item 2 of the present suit schedule was held on 14-02-1995. Thereupon, the 2nd respondent filed an application on 20-05-1995, to set aside the sale. It was dismissed on 29-03-1996. Aggrieved thereby, he filed C.M.A. No. 565 of 1996 in this Court. The C.M.A. was dismissed on 27-11-1997. The sale in favour of the 7th respondent is said to have been confirmed on 29-03-1996. The present suit came to be filed on 31-07-1995. An observation was made by the trial Court to the effect that the 2nd respondent did not take any steps to question the auction sale, till it was confirmed and that the present suit was filed after the dismissal of E.A.S.R. No.1367 of 1995, and during the pendency of the C.M.A. No. 565 of 1996. The record needs to be corrected to the extent that E.A.S.R. No.1367 of 1995 was dismissed on 29-03- 1996, whereas the present suit was filed on 31-07-1995. That, however, makes little difference.
18. It hardly needs any repetition, that in addition to proving the execution of the Will, like any other document, the persons claiming under it have to explain the suspicious circumstances, if any surrounding it. What constitutes a suspicious circumstance, depends upon the facts and circumstances of the case. In the instant case, the entitlement of Manikyam, to execute a Will, in respect of the suit schedule properties, was not denied. The controversy is only as to the very factum of execution of Ex.A-5. The scribe of Ex.A-5 was examined as PW-2, and one of its attestors as PW-3. Though the 2nd appellant is examined as PW-2, his testimony does not have much of a bearing, on this Will.
19. PW-2 is a professional document writer. He stated that he knew the testator, who was an illiterate, and on being sent for, he went to his house at Vissakoderupalem village. He furnished the description of the house of the testator, as well as the place, at which the Will was executed. He deposed that on an earlier occasion he scribed a promissory note on behalf of one Mr.Narasimha Rao, in favour of Manikyam. He stated that Manikyam dictated the terms of the Will and he drafted them, conforming to such instructions. This witness spoke about the presence of PW-3 and another, and stated that PW-3 signed Ex.A-5, after the testator put his thumb impression for it.
20. In the cross-examination, he stuck to the version deposed during the course of chief-examination. No contradiction, worth its name was extracted through him. The only substantial information elicited through him was that the office of Sub-Registrar, Veeravasaram is nearer to his place of residence, than the Sub-Registrar's office at Bhimavaram. Other suggestions were not of much importance. For example, he was asked to explain as to why the Will was not registered. He reiterated that the attestors were present and the testator put his thumb impressions twice on the document.
21. PW-3 is an attesting witness. He deposed that himself and the testator are from the same village; he was present when Ex.A-5 was written by PW-2 and when the testator put his thumb impression on that. He spoke to the presence of two more witnesses, who signed as attestors. He also stated that after the PW-2 wrote Ex.A-5, it was read over to the testator, the latter put his thumb impression upon it, and thereafter, himself and other attested it. One of the attestors by name, V. Gangolu is said to have died 4 to 5 years ago. It was elicited through him that he knows 2nd respondent. In the cross-examination he said that at the time of execution of the Will, the son, daughter-in-law and other members of Manikyam's family were present. This is being projected as contradiction from the deposition of PW-1. He denied the suggestion that he is a close friend of the 2nd respondent and that Ex.A-5 was fabricated.
22. Nothing was elicited by the respondents, from PWs 2 and 3, to doubt their presence when Ex.A-5 is executed. The fact that Ex.A-5 was not registered, makes little difference, and at any rate, a scribe cannot be expected to explain the circumstances. It has come in the evidence that the process went on, for one-hour. It is too difficult to expect that the number of persons present in a residential house, in a village, remains the same, during the process of execution of Ex.A-5. It is quite possible that while the members of the family of Manikyam are present in the house for whole or some time at the time of writing the Will, the testator, scribe and attestors alone may have present, when it was signed and attested. Therefore, it can be safely concluded that the execution of Ex.A-5 is proved, as required under law.
23. Now it remains to be seen, as to whether there existed any suspicious circumstances around Ex.A-5, and if so, whether the appellants explained the same to the satisfaction of the Court. One of the recognized suspicious circumstances in relation to a Will is the exclusion of natural descendants from the bequest. Intensity of the suspicion increases, in proportion to the lack of proximity of the beneficiaries under the Will, to the testator. A testator has absolute discretion to exclude his natural descendants, and to bequeath his properties to any of the strangers. The occasion to ascertain the reasons therefor arises, only after the death of the testator. The reasons can neither be ascertained during his lifetime, nor would the testator be available, for verification, by the time the Will comes into force. It is for this reason, that the matter falls mostly into the realm of imagination, reasoning and probabilities.
24. It is not as if Manikyam had bequeathed his properties to any persons outside his family. The gravity of suspicion that arises, on account of exclusion of his son, the 2nd respondent, from the Will, virtually stands neutralized, with the fact that the vested remainder was created in favour of the sons of the 2nd respondent. The appellants pleaded that the 2nd respondent was addicted to vices, and that he developed illicit intimacy with another woman.
The 7th respondent urged that the recital in Ex.A-5 is to the effect that Manikyam was being looked after by his wife and son, the 2nd respondent; falsifies this. There does not appear any contradiction in this regard, if a close analysis is undertaken. The fact that the 2nd respondent was looking after his parents, does not exclude the possibility of his having been addicted to vices. The 2nd respondent remained ex parte, and the 7th respondent did not choose to summon him, at least as a witness. At any rate, the law does not require a testator, to leave any valid basis for excluding the natural descendants from the disposition under the Will. Much would depend upon the attending circumstances.
25. In the matter of examination of suspicious circumstances, much would depend on the source from which, the attack to the Will is forthcoming. In the ordinary course of things, such contentions are raised by the persons, who were denied of the inheritance or succession to the property, on account of a Will. Admittedly, the respondents 6 and 7, who contested the suit, do not fall into that category. In the facts and circumstances of the case, they could certainly have raised objection, as to proof of Ex.A-5. When it comes to a question of insistence on explanation of suspicious circumstances, they do not stand on the same footing, as does a descendant, who is denied of the property, through the disposition under the Will. Therefore, the findings of the Courts below, as to proof of Ex.A-5, and consequently upon the declaration of title of the appellants over item 2, of the suit schedule property, cannot be said to be based upon settled legal principles of law.
26. The second point, viz., whether the decree in O.S. No. 17 of 1988 is binding upon the appellants, in fact stands answered substantially with the discussion on the first point. Once it emerges that the appellants derived title to the suit schedule properties under Ex.A-5, the mortgage of item 2 of the suit schedule, made by respondent No.2 and his sisters, lacks any legal basis. The mortgage or the steps taken in pursuance thereof do not bind the appellants. It is not as if the 6th respondent is without any remedy. It can certainly proceed against defendant No.2, to recover the amount.
27. For the foregoing reasons, the second appeal is allowed, and the judgments and decrees of the Courts below are set aside. The suit shall stand decreed as prayed for, but without costs. It is made clear that, it shall be open to the respondent No.6, to proceed against respondents 2, 4 and 5, to recover the amount, covered by decree in O.S. No. 17 of 1988, on the file of the Senior Civil Judge, Bhimavaram. The amount deposited by the 7th respondent is said to have been kept in a fixed deposit. He shall be entitled to withdraw the same, together with the interest, accrued thereon.