L. Narasimha Reddy, J.
1. This is an appeal by the unsuccessful plaintiff in OS No. 34 of 1987 on the file of the Subordinate Judge, Sompeta, Srikakulam District. The parties are referred to as arrayed in the suit.
2. Briefly stated, the facts are as under:-
3. There were two brothers by name Pedda Venkatesham and Chinna Venkatesham, Ram Lakshmi is the wife of Pedda Venkatesham and Narsamma is the wife of Chinna Venkatesham. Chinna Venkatesham died issueless. Pedda Venkatesham and Ram Lakshmi got a son by name Subba Rao and seven daughters. One of the daughters by name Chintamma was married to R.V. Narasimha Murthy (PW2). Since Chintamma died, PW2 married another lady by name Ammalamma and through her he got a son by name Surya Prakash Rao (PW1), the plaintiff.
4. Defendant No. 1 (D. Gunnamma) is the 3rd wife of Subba Rao, whom he married after the death of his first two wives. Subba Rao died on 9-5-1969. The plaintiff is said to have been adopted by the 1st defendant under Adoption Deed dated 23-4-1975 (Ex.A2). Sundramma (D-15), Chandramma (D-14) and Varalakshmi (died) are three other sisters of Subba Rao. Much is not stated about the other three sisters. Defendants 2 and 3 are the sons and defendants 4 and 5 are the daughters of Suandramma (D-15). Chandramma (D-14) had a son named M. Gopalakrishna Murthy (D-6). Her another son Narsimha Murthy died and his two sons are defendant Nos. 7 and 8 and his wife is defendant No. 9. Defendant No. 11 is the son and Defendants 12 and 13 are the daughters of Late Varalakshmi. D10 claimed to be another wife of Subba Rao.
5. After the death of Subba Rao in the year 1969, the wife of his paternal uncle Narsamma filed a suit in OS No. 63 of 1969 claiming general partition. By that time, the mother of Subba Rao viz., Rama Lakshmi was alive. The suit was filed against Gunnamma, the wife and Ram Lakshmi, the mother of Subba Rao. Defendant No. 10 herein (Smt. Venkataratnam) got herself impleaded as defendant No. 3 and had claimed a right through a Will dated 25-1-1968 said to have been executed by late Subba Rao. The suit was dismissed. The matter was carried in appeal in AS No. 387 of 1974 and later it was compromised.
6. Smt. Venkataratnam, defendant No. 10 herein filed OS No. 7 of 1983 on the file of the Subordinate Judge, Somapeta, for partition of joint family properties and to put her in separate possession of her share and for other ancillary reliefs. The 1st defendant in the present suit was arrayed as the 1st defendant in that suit. The remaining defendants were also impleaded in that. The trial Court took the view that since Venkataratnam was a party to the suit in OS No. 63 of 1969, the judgment therein operates as res judicata. It was further held that she is not entitled to any share in the suit schedule property. However, the 1st defendant was declared to be entitled for half share and the other defendants are entitled for the balance of the suit schedule property. Venkataratnam carried the matter in appeal being AS 3 of 1984. The same was dismissed and a preliminary decree for partition among the defendants in OS No. 7 of 1983 was ordered.
7. Surya Prakash Rao, the plaintiff herein, filed the suit for a declaration that he has got title to and possession of plaint A and B schedule properties and for a permanent injunction restraining the defendants from enforcing the decree in OS No. 7 of 1983. The basis for his claim was that late Subba Rao executed a Will dated 9-4-1969 (Ex.A1) bequeathing his entire property, he was adopted by the 1st defendant under a registered Adoption Deed dated 23-4-1975 (Ex.A2), the properties held by late Subba Rao were not liable to be partitioned and the preliminary decree passed in OS No. 7 of 1983 is not binding on or enforceable against him, in view of the Will and the circumstances referred to above.
8. Defendant No. 3 filed written statement and defendants 2,4, 10 and 15, adopted the same. Other defendants remained ex parte. The plea taken in the written statement was that the Will Ex.A1 pressed into service by the plaintiff is not genuine, the 1st defendant had already participated in two suits referred to above, she did not refer to the existence of any such Will or adoption. They have also disputed the claim of title of the plaintiff to the suit schedule properties.
9. On the basis of the rival contentions, the trial Court framed the following issues:
'1. Whether the Will dated 9-4-1969 said to have been executed by late Nagaramapalli Subba Rao is true, valid and binding on the defendants?
2. Whether the adoption deed dated 23-4-1975 is true, valid and binding on the defendants?
3. Whether the judgment in OS No. 7 of 1983 on the file of this Court operates as res judicata against the plaintiff?
4. Whether the plaintiff estopped from filing of this suit by virtue of his own conduct?
5. What is the name of the 10th defendant and whether she is the widow of late Nagarampalli Subba Rao and entitled to a share in the suit properties?
6. Whether the plaintiff is entitled to declaration sought for and has he right of the suit?
7. Whether the suit is in time?
8. Whether the plaintiff is adopted by the 1 st defendant ?
9. Whether the plaintiff has got title to and possession of the plaint schedule property?
10. Whether the defendants 1 to 15 are in possession of the suit properties?
11. Whether the plaintiff is entitled to permanent injunction restraining the defendants from ever enforcing the decree in OS No. 7 of 1983 on the file of this Court?'
On behalf of the plaintiff, PWs.1 to 6 were examined and documents Exs.A1 to A8 were marked. On behalf of the defendants, DWs.1 and 2 were examined and Ex.B1 to B6 were marked. The trial Court found that the Will (ExA1) is not true and valid, the adoption pleaded by the plaintiff is true, the judgment in OS No. 7 of 7 of 1983 does not operates as res judicata in this suit, the plaintiff is not estopped from filing the suit by virtue of his conduct, the plaintiff is not entitled for a declaration sought for, the suit was not barred by limitation and the plaintiff has no title to the suit schedule properties. It is also held that defendants 1 to 15 are in possession of the suit schedule properties and that the plaintiff is not entitled for injunction restraining the defendants from enforcing the decree in OS No. 7 of 1983. The decree is challenged by the plaintiff in this appeal.
10. Sri M.S.K. Sastry, learned senior Counsel appearing for Sri M.V. Suresh, learned Counsel for the appellant/plaintiff, submits that the plaintiff has placed sufficient evidence before the trial Court to prove the Will and the trial Court ought to have accepted the same and decreed the suit. His other contention is that once the plaintiff is not a party to OS No. 7 of 1983, die decree therein was not binding upon him and he was entitled to resist the execution of the same as far as the plaintiff is concenied and in that view of the matter, the trial Court ought to have granted injunction as prayed for. He relied upon several judgments of the High Court as well as the Hon'ble Supreme Court in support of his contentions.
11. Sri M. Ram Mohan, appearing for Sri M.S.R, Subrahmaniyam, learned Counsel for the respondents, on the other hand, submits that the will itself was surrounded by suspicious circumstances and the conduct of the plaintiff as well as the other persons connected and acquainted with the Will throws any amount of doubt as to its genuinity and the trial Court had correctly disbelieved the same. He further submits that unless the plaintiff chooses to challenge the decree in OS No. 7 of 1983 on any of the grounds available to him in law, the execution of the sale cannot be prevented through injunction.
In this appeal, two points fall for consideration, viz.,
(i) Whether the Will (ExA1) is true and genuine? and
(ii) Without the plaintiff was entitled an injunction restraining the execution of the decree in OS No. 7 of 1983?
12. The relationship of the parties referred to above is not in dispute. It is settled principle of law that any party who wants to claim the benefit under a Will has to prove the factum of execution as required under the relevant provisions of the Indian Evidence Act and Indian Succession Act and also to dispel any suspicious circumstances. The same is evident from the judgment of the Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, : AIR1959SC443 , and several other judgments which followed the same.
13. Under Sections 59 and 63 of the Indian Succession Act, it is necessary that there should be at least two attesting witnesses whenever a Will is executed. Similarly, under Sections 67 and 68 of the Indian Evidence Act, examination of attesting witnesses is necessary to prove the execution of the Will. In this case, PWs.1 and 4, who figured as attesting witnesses to the Will, have been examined. In that view of the matter, it can be said that the plaintiff has complied with the requirements under the provisions of the Indian Succession Act and the Evidence Act. The fact, however, remains as to whether he is able to explain and dispel the suspicious circumstances and establish that in fact late Subba Rao executed the Will.
14. In this context, it is necessary to note as to when the plaintiff came to know about the Will for the time? In his evidence as PW1, he stated as under:
'Ex.A1 was scribed by our Village Karanam and it was kept with D1 who gave it later on to me. D1 gave Ex.A1 to me at the time of adoption (23rd April, 1975) and it is with me since then.'
The other two persons who knew about Ex.A1 are D1 and PW2, the natural father of the plaintiff. In his cross-examination, PW2 stated as under:-
'One week or ten days of N. Subbarao's death, I came to know about execution of Ex.Al. The 1st defendant told me about Ex.A1. I do not know under what circumstances Ex.Al was executed.'
The plaintiff was minor even by the date of adoption in 1975. The evidence referred to above would indicate that Dl as well as PW2 was aware of the execution of the Will in the year 1969 itself. It has come on record that OS No. 63 of 1969 was filed by Narasamma w/o Chinna Venkatesham against the 1st defendant herein and her mother-in-law, Ram Lakshmi. The suit related to partition of properties. It has come in evidence that PW2 was assisting the 1st defendant in that suit also. For the reasons best known to them, they did not speak any thing about the Will. It was not as if the succession to the properties of late Subba Rao was not in issue in that suit. In fact the 1st defendant herein got herself impleaded as defendant No. 3 and claimed on the basis of a Will said to have been executed by late Subba Rao on 25-1-1968.
15. Defendant No. 10 herein filed OS No. 7 of 1983. This suit also related to partition of parities. She was claiming through late Subba Rao, as is the plaintiff herein. PW2 herein deposed as DW3 in that suit. He was very much in the knowledge about Ex.A1 when he was depositing in that suit. His evidence in this suit is to the following effect:-
'D1 gave me the Will asking me to inspection to her advocate in this suit filed by D10. I have shown Ex.A1 to the advocate of D1 Sri P.L.N. Sarma of Srikakulam. I informed the advocate that late Nagarampalli Subbrao executed Ex.A1 in favour of my son who is the plaintiff herein. I do not know the contents of the statements filed on behalf of Dl in that suit. The advocate for Dl in that suit returned the Will stated that there is no necessity for the Will in that suit.'
This explanation offered by PW2 is too difficult to be taken on its face value. The said suit ended up in a preliminary decree wherein defendant No. 1 was given half share and other defendants, the remaining half in the suit schedule properties. Whatever may have been the explanation or justification for not placing the reliance upon the Will during the trial, atleast, when the suit ended up in a preliminary decree, which totally ignored the rights of the plaintiff herein, steps were expected either by the plaintiff to get himself impleaded or at least by the 1st defendant to bring the factum of the execution of the said Will and adoption to the notice of the Court. Failure on their part to do so would virtually force the Court to draw an inference that Ex.A1 was brought into existence at a subsequent stage.
16. The 1st defendant was the person who was conversant with all the matters. She was the one who is said to have known about the execution of the Will at the earliest point of time. She would have been in a better position to explain the circumstances under which Ex.A1 came to be executed, the reason for not placing reliance on the same in the earlier two suits and the other related matters. For the reasons best known to him, the plaintiff did not choose to examine the 1st defendant, nor did he takes steps to get her summoned if she was not sailing with him. He tried to explain his failure by stating that she was not hale and healthy. However, his own witness-PW5, who is related to the family, said that the 1st defendant is hale and healthy. Therefore, an inference deserves to be drawn that the plaintiff did not examine the 1st defendant obviously because her evidence would go against him.
17. There are certain other aspects, which remained unexplained by the plaintiff. By the time of death of Subba Rao, his old mother and wife, defendant No. 1 herein, were alive. The age of the plaintiff at that time was hardly four or five years. Subba Rao's family had scores of other relations, who are his sisters or their children. His paternal uncle's wife Narasamma was alive and the property remained undivided between his father and the paternal uncle. It was not as if the plaintiff was no nearer to him in relation. One of his sisters Chintamma was given in marriage to PW2. She died issueless. PW2, married Ammalamma after the death of Chintatmna. The plaintiff is the son of Ammalamma, who is in no way related to the family of Subba Rao. There were several children of the other sisters of Subba Rao of equal or older age than the plaintiff. It was rather unnatural for the orthodox Brahmin family of such a size and with so many obligations to be left to the plaintiff and his father who by that time was in no way directly related to the family, except for the previous relation of PW2 till the death of Chintamma. It is also unnatural for Subba Rao to leave nothing to his wife, mother and paternal aunt, Narsamma. They were not even provided for life estate and were made dependent on plaintiff who was a child.
18. The signature of late Subba Rao on Ex.A1 does not gain the confidence of the Court, even when the same is compared with a naked eye. PWs.3 and 4 have categorically stated in their cross-examination that the signature of Subba Rao does not contain any over-writings. However, there is hardly a letter in the signature, which does not contain overwriting. PW2 placed Ex.A16 before the Court for the purpose of comparison of signatures of late Subba Rao, The signatures of Ex.A16, on one hand, and Ex.A1, on the other, are separated by few months in point of time. However, the pattern of writing is so radically different that it is too difficult to believe that they are of the same person.
19. Under these circumstances, it is too difficult to attach any genuinity to Ex.A1 and the finding of the trial Court on the same does not call for any interference.
20. Sri M.S.K. Sastry, learned senior Counsel for the appellant, has advanced arguments as to the effect of adoption by a widow, i.e., whether adoption by a widow would result in establishing any relationship between the adopted boy and the deceased husband of the widow. He submits that though the adoption of the plaintiff by defendant No. 1 is subsequent to the death of late Subba Rao, the plaintiff should be treated, for all practical purposes, as the son of late Subba Rao.
Initially, there was some difference of opinions between Bombay and Allahabad High Courts, on one hand, and this Court, on the other, in this regard. While in Ankush Narayan v. Janabai Rama Sawat, : AIR1966Bom174 , and Subash Misir v. Thagai Misir, : AIR1967All148 , it was held that adoption by a widow would establish the relationship of father and son between the adopted son and the deceased husband of the widow, in N. Hanumantha Rao v. N. Hanumayya, ILR (1996) AP 140, this Court had taken a different view. The Hon'ble Supreme Court in Sawan Ram v. Kalavanti, : [1967]3SCR687 , overruled the view taken by this Court and held that the child would be treated as the son of the deceased husband of the widow who took the child in adoption. The same view was reiterated in Sitabai v. Ramchandra, : [1970]2SCR1 . Therefore, the contention of Sri M.S.K. Sastry, learned senior Counsel, that the plaintiff should be treated, for all practical purposes, as the son of late Subba Rao, deserves to be accepted. However, much does not turn upon the same. The reason is that the plaintiff did not seek partition, as being the class I heir of late Subba Rao. In fact whatever property Subba Rao was entitled to, was kept towards the share of his wife, the 1st defendant. Plaintiff has to work out his remedies, if any, against the 1st defendant and not the other defendants.
The next question is whether the plaintiff was entitled for injunction against enforcement of decree in OS No. 7 of 1983. The learned senior Counsel relied upon the judgment of the Madras High Court In re Sathappa Chettiar, : AIR1954Mad1126 , in support of his contention that it is not necessary to seek the cancellation of any decree or any declaration for an effective partition. That case arose in the context of payment of Court fee. The plaintiff wants an injunction restraining the execution of the decree in OS No. 7 of 1983. A decree of Court of a competent jurisdiction vests the corresponding rights in the parties thereto. If any one, who is not a party to such a decree or otherwise, wants to prevent the execution of the same, they have to plead necessary facts a in properly constituted proceedings and satisfy the Court as to how such a decree is vitiated, whether on questions of fact or in law. As long as that is not done, no Court has power to prevent the execution of the same. The plaintiff has not chosen to state any reasons as to how the decree in OS No. 7 of 1983 is vitiated either on question of fact or on question of law. Unless he brings his attack within the grounds know to law to annul a decree, such as, being without jurisdiction vitiated on the grounds of fraud, void on any grounds recognised under the Contract Act, and other similar factors, the Court would not be in a position to record a finding and render its decision. In the absence of the same, the relief of injunction was totally misconceived and the rejection of the same by the trial Court cannot be said to be wrong, in any way. The rights, which have accrued to the parties under the decree, cannot be set at knot or denied to them.
21. Further, the ratio of the cited decision (Chettiar's case - supra) is to the effect that, in seeking the decree for partition, the parties need not challenge any decree, which may come in the way. However, in the present suit, the plaintiff did not seek the relief of partition. The parameters of adjudication in partition suit radically differ from other kinds of suits. Hence, the ratio does not apply to the case on hand.
22. In view of the foregoing discussion, I do not find any ground to interfere with the judgment and decree of the trial Court. The appeal is accordingly dismissed with costs.