Judgment:
Bilal Nazki, J.
1. Three suits being O.S.No. 165 of 1980, O.S.No. 35 of 1981 and O.S.No. 105 of 1981 were decided together by Prl. Subordinate Judge, Ongole on 2-2-1996. Three appeals being A.S.No. 1313 of 1996, A.S.No. 1179 of 1999 and 2850 of 1996 were filed against the common judgment and decree of the trial Court and they were decided together by a learned single Judge of this Court on 13-12-1999. Hence these L.P.As.
2. Suit properties originally belonged to one Nadendla Sheshaiah. Plaintiff No. 1 and his daughter-plaintiff No. 2 filed O.S.No. 165 of 1980. Plaintiff No. 1 claimed to be Nadendla Sheshaiah's maternal uncle's son. They sought a declaration of title in respect of plaint 'A' schedule property in favour of plaintiff No. 1 and plaint 'B' schedule property in favour of plaintiff No. 2. They also sought a decree for permanent injunction restraining the defendants from interfering with their possession in respect of the suit schedule properties basing on the Will dated 20-2-1980 Ex. A-1, allegedly executed by Nadendla Sheshaiah.
3. O.S.No. 35 of 1981 was field by second wife of Nadendla Sheshaiah seeking partition of plaint A, B and C schedule properties into two equal shares and allotment of one such share to her.
4. Plaintiff in O.S.No. 105 of 1985 claimed to be the grand son of mother's sister of Nadendla Sheshaiah. He sought a decree for partition of plaint A schedule properties into two shares and allotment of one such share to him on the basis of a Will deed dt. 29-3-1980 Ex. B-2, allegedly executed by Nadendla Sheshaiah.
5. The plaintiffs in O.S.No. 165 of 1980 claimed that the defendants 1 and 2 were the wives of Nadendla Sheshaiah and they had no children. After marrying defendant No. 2, the 1st defendant filed false criminal case of bigamy against Nadendla Sheshaiah and others and it was dismissed. Nadendla Sheshaiah obtained a decree for permanent injunction against the 1st defendant and her brothers, and father of defendants 3, 4 and 6 and husband of defendant No. 5 from interfering with his possession and enjoyment over the suit schedule properties. As a result the relations between them became strained and the defendant No. 1 was living with her brothers. The plaintiff No. 1 was assisting in the cultivation of the properties of late Nadendla Sheshaiah for 20 years. Nadendla Sheshaiah developed some disease prior to his death and with the assistance of plaintiff No. 1 and on the advice of Dr. B.V.L. Narayana, Ongole, he was operated upon. Even after the operation, he developed some other diseases. In third week of February, 1980 his condition became worse and he wanted to make a Will with regard to the properties. He went to Ongole and met an advocate Sri R. Satyanarayana and executed a Will Ex. A-1 on 20-2-1980. He also executed a general power of attorney in favour of the plaintiff No. 1. Thereafter Nadendla Sheshaiah was admitted to a hospital of Dr. B.V.L. Narayana as an inpatient. He was advised to take complete bed rest. He was treated in the said hospital and the plaintiff No. 1 was attending on him. When the defendant No. 1 came to know about the admission of Nadendla Sheshaiah in the hospital, she came to Ongole along with her sister's son (defendant No. 6). As she came to know about the execution of the will and general power of attorney in favour of plaintiff No. 1, she got issued a notice to the plaintiff No. 1 on 23-2-1980. The notice was replied on 4-3-1980. On 6-3-1980 the condition of Nadendla Sheshaiah became serious and the plaintiff was with him. While he was sleeping, the defendants 1 and 3 to 6 forcibly removed Nadendla Sheshaiah from the hospital during the night of 5/6th March, 1980 and took him away in a taxi. From 5-3-1980 Nadendla Sheshaiah was unconscious and was not in a position to understand anything and ultimately he died on 3-4-1980. The plaintiff No. 1 performed the obsequies and spent money. Under the will dt. 20-2-1980 the plaintiff No. 1 was entitled to plaint A schedule property and the plaintiff No. 2 to plaint B schedule property. The defendants 1 and 2 and Sri Sitaramanjaneya Devasthanam were also entitled to certain properties. In these circumstances the suit was laid.
6. The defendant No. 1 in her written statement denied the allegations made in the plaint. It was, however, admitted that the plaintiff 1 and 2 were the nephew and niece of Nadendla Sheshaiah. The defendant No. 1 was married about 40 years before to Nadendla Sheshaiah. They had a male child, but he could not survive. Defendant No. 2 married Nadendla Slieshaiah on 12-5-1960. The defendant No. 1 filed a complaint being C.C.No. 802 of 1960 before the Additional Munsif Magistrate against her husband, defendant No. 2, plaintiff No. 1 and others for an offence of bigamy. The case was dismissed for want of proof. It was submitted that the 2nd defendant could not claim to be the legal wedded wife of Nadendla Sheshaiah and the marriage was invalid and illegal. Nadendla Sheshaiah filed a suit for injunction being O.S.No. 348 of 1960 which was decreed. However that decree could not in any way affect the vested rights of defendant No. 1 as she was the legally wedded wife of Nadendla Sheshaiah. On 19-2-1980 Nadendla Sheshaiah became very sick and the defendant No. 5 who was the sister's daughter of defendant No. 1 took Nadendla Sheshaiah to Ongole on 20-2-1980 and got him admitted in the hospital of Dr. B.V.L. Narayana. The plaintiff No. 1 came to the hospital and said that Nadendla Sheshaiah had applied for loan earlier, therefore he required some thumb impressions on the loan bonds so that the cheques could be issued in the name of Nadendla Sheshaiah. The defendant No. 5 believed the plaintiff No. 1 and the plaintiff No. 1 took Nadendla Sheshaiah to Prakasham Bhavan on the same day where his thumb impressions were taken on stamp papers. Later he was taken to Joint Registrar's office for registration of a document. The defendant No. 1 objected to it. The Joint Registrar was not satisfied with the mental condition of Nadendla Sheshaiah and he refused to receive the document for registration. The defendant No. 5 got issued a notice which was Ex. A-10 to the plaintiff No. 1 on 23-2-1980. The documents including the will were obtained by fraud, coercion and misrepresentation. Therefore the plaintiffs were not entitled to any property in terms of the said will.
7. Defendants 3, 4 and 6 adopted the written statement filed by defendant No. 1.
8. Defendant No. 2 filed a separate written statement and submitted that she was married to Nadendla Sheshaiah on 26-2-1948 and since then she was living with him. Defendant No. 1 had filed a false complaint which was dismissed and a decree of injunction was obtained by Nadendla Sheshaiah against defendant No. 1. Execution of any will by Nadendla Sheshaiah on 20-2-1980 was denied. Defendant No. 2 filed a suit for partition being O.P.No. 151 of 1980 claiming that she was entitled to half share in the properties of Nadendla Sheshaiah.
9. Defendant No. 5 filed a separate written statement. She claimed to be the sister's daughter of defendant No. 1. The signatures of Nadendla Sheshaiah were obtained on a will by plaintiff No. 1 by misrepresenting that they were required for the purpose of loan bonds and issuance of cheques. Therefore the properties would devolve on defendant No. 1. She also claimed that defendant No. 2 was not the legally wedded wife of Nadendla Sheshaiah. Defendant No. 1 executed a registered will deed Ex. B-29 on 3-9-1983 bequeathing all the properties inherited by her from her husband in favour of defendant No. 5. The defendant No. 1 died on 2-10-1987. Because of the will executed by defendant No. 1, the defendant No. 5 claimed to have become entitled to all the properties.
10. O.S.No. 35 of 1981 was filed by second wife of Nadendla Sheshaiah who is defendant No. 2 is O.S.No. 165 of 1980. She claimed partition of plaint A, B and C schedule properties on the ground that she was the second wife of Nadendla Sheshaiah. The suit was laid on the assertions she made in the written statement filed in O.S.No. 165 of 1980.
11. O.S.No. 105 of 1985 was filed by a person who claimed to be the grand son of mother's sister of Nadendla Sheshaiah. He stated that Nadendla Sheshaiah had great affection towards him and he brought him to his house, maintained and educated him and thus he was living with Nadendla Sheshaiah. He disputed all the will except Ex. B-2. He claimed that Nadendla Sheshaiah had come to know about the fabricated will and therefore he executed a will Ex'. B-2 on 29-3-1980 in a sound and disposing state of mind in favour of this plaintiff, which was his last will. The plaintiff in this suit sought to implead himself as a party defendant in other suits being O.S. No. 165 of 1980 and O.S.No. 35 of 1981, but his petitions were dismissed, therefore he filed a separate suit.
12. The defendants in O.S.No. 35 of 1981 and 105 of 1985 are parties to other suit and they filed their written statements and reiterated what they had mentioned in their written statements filed in other suit.
13. On the basis of the pleadings, the following issues were framed by the trial,
O.S.No. 165 of 1980:
(1) Whether the plaintiffs are in possession of the suit property on the date of suit?
(2) Whether the will dated 20-2-1980 . was vitiated by fraud, coercion and undue influence as pleaded by 1st defendant?
(3) Whether the oral lease set up by defendants 1, 3 to 5 is true, valid and binding on plaintiffs?
(4) To what relief?
14. Additional issue framed on 5-11-1990:
Whether the will dated 3-9-1983 is true, valid and binding on the plaintiff and D-2?
15. Issue No. 2 was deleted and the following issue was framed on 29-1-1992,
Whether the alleged will dt. 20-2-1980 said to have been executed by Nadendla Sheshaiah is true and valid and whether it was executed by late Nadendla Sheshaiah in a sound and disposing state of mind?
O.S.No. 35 of 1981:
(1) Whether the plaintiff is the legally wdded wife of late Nadendla Sheshaiah?
(2) Is the plaintiff entitled to a half share in the suit properties?
(3) Whether the will dated 20-2-1980 pleaded by defendant No. 2 is true, valid and binding on the plaintiff and the 1st defendant?
(4) Whether the gift of land in S.No. 178/5 of Tellabadu (Doddavaram) village by late Seshaiah to the 5th defendant is true, valid and binding on the plaintiff?
(5) Are the properties in C schedule available for partition?
(6) Is the plaintiff entitled to claim profits?
(7) To what relief?
O.S.No. 105 of 1985:
(1) Whether the will dt. 29-3-1980 was executed by late Nadendla Sheshaiah in a sound and disposing state of mind and is true?
(2) Whether the will dt. 20-2-1980 executed by N. Seshaiah is not true?
(3) Whether item No. 8 of plaint A schedule belonged to 6th defendant and whether its correct S.No. is 178/15?
(4) Whether the plaintiff is entitled to the reliefs of partition and separate possession prayed for?
(5) Whether the plaintiff is entitled to any future profits?
(6) To what relief?
16. All parties agreed to joint trial and evidence was recorded in O.S.No. 165 of 1980. The trial Court decreed the suit being O.S.No. 165 of 1980 and dismissed the other two suits being O.S.No. 35 of 1981 and 105 of 1985. The learned single Judge of this Court set aside the judgment and decree in O.S.No. 165 of 1980 and upheld the judgments and decrees in other suits.
17. From the pleadings of the parties and from the judgments of the Courts, the main controversy between the parties appears to be the different wills which were pressed into service. The first will is dated 20-2-1980 Ex. A-1 and the second will is dated 29-3-1980 Ex. B-2 and third will is dated 3-9-1983 Ex. B-29. The learned single Judge framed the following questions for consideration.
(i) Whether the will Ex. A-1, dated 20-2-1980, alleged to have been executed by Nadendla Sheshaiah is true and genuine;
(ii) Whether the will Ex. B-2, dated 29-3-1980, alleged to have been executed by Nadendla Sheshaiah is true and valid;
(iii) Whether Ex. B-29 executed by the defendant No. 1 in O.S.No. 165 of 1980 dated 3-9-1983 is true and valid; and
(iv) Whether the properties left behind by Nadendla Sheshaiah are liable for partition inter se his heirs?
18. First will that is supposed to have been executed by Nadendla Sheshaiah on 20-2-1980 is Ex. A-1 and the second will i.e., Ex. B-2 on 29-3-1980. The testator died on 3-4-1980. There is a gap of about 40 days between the death of testator and the first will and about 30 days in case of second will i.e., Ex. B-1. Under Ex. A-1 Nadendla Sheshaiah is supposed to have given the properties to his wife Tulusamma, Venkata Rajamma second wife, Mallipeddi Seshaiah plaintiff No. 1 in O.S.No. 165 of 1980 and also some properties to Nellamothu Poornachandra Rao, Ratnakumari, Sri Seeta Ramanjaneya Swamy Temple and Ramanamma. Major share has been given to plaintiff No. 1 in O.S.No. 165 of 1980.
19. Coming to the second will, Ex. B-2, dt. 29-3-1980, Nadendla Sheshaiah gave all the properties to Sajja Seshagiri Rao who is the plaintiff in O.S.No. 105 of 1985.
20. Now let us come to the evidence with regard to these two wills. Witnesses to Ex. A-1 are R. Satyanarayana, Aduri Anjayaneyulu and Mallipeddi Koteswara Rao and scribe is Vippagunta Narasimha Rao and witnesses to the second will Ex. B-2 are Nallamotu Seshaiah, Siripurapu Subbaiah and Kilari Sriramulu.
21. P.W. 1 in his examination in chief stated that Narasimharao was the scribe of Ex. A-1 will. He refused to come and give evidence. The witness did not know the reason why Narasimharao was not willing to come and give evidence. In his cross-examination he stated that he did not know the scribe prior to execution of Ex. A-1. Nadendla Seshaiah gave Rs. 25/- or Rs. 30/- to the scribe for writing the will Ex. A-1. He had given Rs. 35/- to P.W. 2 for his legal advice. He did not pay any amount to Aluri Anjaneyulu who was one of the attesters of Ex. A-1. He did not know whether the said Anjaneyulu was working as a stout. He did not apply for summons to the scribe Narasimharao. He disagreed with the suggestion that Ex. A-1 had been brought into existence after the death of Nadendla Sheshaiah, that was why the scribe was not willing to testify.
22. P.W. 2 stated that he was a practicing advocate since 1962. He knew the deceased Nadendla Sheshaiah who was his client. Nadendla Sheshaiah executed a will in his presence at his office. He attested the will. Nadendla Sheshaiah affixed his thumb impression in his presence. He had become very old and his hand was shivering. The scribe drafted the will on the dictation of Nadendla Sheshaiah. Nedendla Sheshaiah affixed his thumb impressions on the will in his presence and in the presence of other attesters. He and other attesters and the scribe were present when he affixed his thumb impressions. He and other attester and the scribe signed the will in the presence of Nadendla Sheshaiah. Ex. A-1 was the will attested by him. Nadendla Sheshaiah also executed a general power of attorney on a stamp paper. He advised the deceased Sheshaiah to admit in the hospital as he was not well. In his cross-examination he stated that Nadendla Sheshaiah came to his office along with others between 2 and 3 P.M. He told him that he was in the last days of his life, therefore he wanted to settle his properties. He came to him for advice regarding that matter, as he was his client. Nadendla Sheshaiah did not inform him about the nature of his illness, but he was old and oscillating. He did not tell the witness that he wanted to meet and consult his doctor. But after execution of the will and general power of attorney th'e witness advised Nadendla Sheshaiah to go and consult Dr. B.V.L. Narayana. Nadendla Sheshaiah was physically instable and shaky and his hand was shivering, therefore he advised him to go to the doctor. The witness was mainly a criminal practitioner, not having much knowledge of civil law, so he did not know as to what contents must be mentioned in the will. Nadendla Sheshaiah wanted to execute a document settling his properties, but to execute a settlement deed, a sum of Rs. 10,000/- would have to be spent for stamp duty and registration fee, therefore he advised him to execute a will for which only a sum of Rs. 100/- or Rs. 200/-would be sufficient. The witness had not asked Nadendla Sheshaiah as to how much money he had with him, but Nadendla Sheshaiah had told him that he had not brought huge amount. Nadendla Sheshaiah told the witness that he had informed defendants 1 and 2 that he would be executing a document regarding his properties, but he had not informed them as to how much property he would be giving to each and to whom. He had also told the witness that if he had informed the particulars of the settlement to defendant 1 and 2 and others, his safety would be in danger.
23. P.W. 3 stated that he knew Nadendla Sheshaiah. He also knew all the parties to the suit, they are related to each other. Nadendla Sheshaiah executed a will. He was also present at the time of execution of the will. At the time of execution of the will Nadendla Sheshaiah was suffering with disease. He was conscious. P.W. 2 was the advocate of Nadendla Sheshaiah. On that day he had gone to the office of Battula Satyanarayana in connection with land reforms case of his father-in-law. The office of Battula Satyanarayana is opposite to the office of P.W. 2. The will was written on the instructions of Nadendla Sheshaiah. Nadendla Sheshaiah had called him while he was in the office of Battula Satyanarayana. The will was read over to Nadendla Sheshaiah. Ex. A-1 was attested by him.
24. P.W. 1 admitted in his statement and in his gross-examination which has been discussed by the trial Court as well as by the learned single Judge that Nadendla Sheshaiah was not in good health when he executed Ex. A-1. In his chief-examination before the Court P.W. 1 stated,
'Myself.................Saw Nadendla Sheshaiah putting the thumb mark in Ex. A-1. He affixed thumb impression after understanding the contents of the will and executed the same. After execution of the will myself, testator, Mallipeddi Koteswararao, my farm servant Ramulu went to Dr. B.V.L. Narayana Hospital, Ongole. After examining Seshaiah Doctor advised him to admit in the hospital as inpatient to take treatment. Therefore he was admitted. Nadendla Sheshaiah was suffering from Blood pressure, sugar and shivering due to paralysis. About 4 years ago he was given treatment for urinary infection and he was suffering with sugar. I attended him at the hospital. He was in the hospital about 15 days. Saraswathamma (D-5), Tulasamma (D-1) and Rangarao (D-6) came to the hospital to see him on 3rd day. D-1 asked Seshaiah about the properties. Seshaiah replied that he executed Ex. A-1 deed. Seshaiah did not recover from illness but, on the 15th day early morning at 2.00 a.m. D-1, D-5 and D-6 came to the hospital in a taxi and forcibly took Seshaiah to their village by then I was sleeping in the veranda. informed the compounder. On 3-4-1980 Seshaiah died.'
25. Further in his examination in chief he stated,
'By the time Nadendla Sheshaiah was taken away by D-1, D-3, D-5 and D-6, he was unconscious. Till his death he did not regain consciousness.'
26. In this background, when the man was suffering from paralysis, the Court is not sure as to whether he was mentally alert so as to settle his properties on the day he allegedly executed Ex. A-1. He was admitted to the hospital of Dr. B.V.L. Narayana who examined him and advised him to take bed rest. Therefore we are not in a position to disagree with the findings of the learned single Judge on this issue. The learned single Judge found that P.Ws. 1 to 3 had not spoken about the actual physical and mental condition of Nadendla Sheshaiah, but as we have pointed out hereinabove, P.W. 1 in his statement stated that Nadendla Sheshaiah was paralytic and even the advocate P.W. 2 in whose office the will was allegedly drafted and executed, stated that on seeing the condition of Nadendla Sheshaiah he advised him to go to the hospital. He admitted that the condition of Nadendla Sheshaiah was bad and he was shivering. This advocate has also a mysterious character who states that he had only criminal practice and does not know what should a will contain. Even if a man is practising on criminal side, even then after 18 years of practice one expects that he could have drafted the will himself and not left it to some scribe. That scribe was also not brought before the Court. In these circumstances, the will Ex. A-1 is shrouded with mystery. Therefore we hold that Ex. A-1 will has not been proved.
27. Coming to the second will Ex. B-2, it was allegedly executed 37 days after the first will and it suffers from the same difficulties from which the first will suffers as this Court is not in a position to believe that Nadendla Sheshaiah was mentally alert and healthy on 20-2-1980 and his condition was further worsened according to the evidence and eventually died on 3-4-1980. This second will also cannot be held to have been proved. D.Ws. 1 to 3 were examined in proving this will. D.W. 2 was the scribe of Ex. B-2. He stated that the will was executed in a house belonging to one Vanajakshamma. He did not know who gave instructions to him to write the will. In his cross-examination he also stated that he had informed the testator that Ex. B-2 was needed to be registered. He admitted that the testator's right hand and right leg were affected by paralysis and it has been incorporated in the will.
28. The evidence has been in detail discussed by the learned single Judge and we agree with him that Ex. B-2 was not also proved to be genuine document. In this connection, reference may be made to a judgment of the Supreme Court reported in H. Venkatachala lyengar v. B.N. Thimmajamma and Ors., : AIR1959SC443 . The Supreme Court in para 18 held,
'.......Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will.......It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
In paras 20 and 21 also the Supreme Court held,
'There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.'
29. Similarly in a judgment of the Supreme Court reported in Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and another, : [1982]1SCR1188 it was held that the onus to prove a will is on the propounder and the suspicious circumstances surrounding the will had to be explained by the propounder.
30. In another judgment of the Supreme Court reported in Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar and Ors., : AIR1995SC2086 while referring to the long list of cases, dealing with suspicious circumstances surrounding the execution of will, the Supreme Court held that the propounder needs to explain the suspicious circumstances to the satisfaction of the court before the will can be accepted as genuine. The suspicious circumstances which the Court should take note of, according to the judgment of the Supreme Court, are
(1) The propounder taking a prominent part in the execution of a will which confers substantial benefits on him;
(2) Shaky signature;
(3) A feeble mind which is likely to be influenced;
(4) Unfair and unjust disposal of property;
31. Now the evidence has been discussed by the trial Court as well as by the learned single Judge and there is ample evidence that for execution of both wills Ex. A-1 and B-2 the propounder took prominent part and there are shaky signatures and the feeble mind could be presumed in view of the health condition of the testator and in both the wills there is a unfair and unjust disposal of the properties.
32. Other judgments on which reliance has been placed are the judgments reported in V. Venkateswara Rao v. Y. Nageswara Rao and Ors., 2000 (1)CCC 142 (A.P.) Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr., : [1962]3SCR195 Shri Kishan Chand and Anr. v. Smt. Basanti Devi (died) by LRs., 1996 (2) ICC 283 and Gorantla Thataiah v. Thotakura Venkata Subbaiah and Ors., : [1968]3SCR473 .
33. After the two wills, the next question which will have to be answered is whether defendant No. 2 in O.S.No. 165 of 1980 was the legally wedded wife of Nadendla Sheshaiah. Defendant No. 2 (D.W. 5) stated in her statement that the suit property belonged to her husband and her husband had no children through his first wife. Her husband was the son of her maternal aunt and thus she was related to him even before her marriage with him. Her marriage with Nadendla Sheshaiah had taken place 47 years ago as per Hindu rites and customs. After her marriage, she, the first wife Tulsamma and her husband used to reside in the same house for 10 to 12 years. She had no issues. Later on some disputes arose between her husband and his first wife. His first wife Tulsamma left the house and joined her brothers. Her brothers were powerful people in the village. They caused obstruction to the cultivation of land by her husband. Then her husband filed a suit for permanent injunction against his first wife and her brothers. The suit was decreed on contest. Tulsamma filed a criminal case against her and her husband and others for an offence of bigamy. The case ended in acquittal. Tulsamma left their house. Tulsamma and her husband did not have cordial relations.
34. On facts the trial Court found that the marriage was not proved to have been contracted in 1948. On the other hand, the accompanying circumstances that bigamy complaint was made before a Magistrate's Court in the year 1960 by Tulsamma, the first wife would suggest that the marriage had taken place around in 1960. Though the complaint was dismissed, there was no finding given with regard to the marriage, but in any case it creates an impression that the marriage had not been contracted in 1948 as claimed by the defendant No. 2, but somewhere in 1960. The suit filed by Nadendla Sheshaiah against his first wife and her brothers was also filed in the year 1960. That gives further proof that the marriage took place somewhere in 1960. The defendant No. 2 relied on Exs. B-19 to B-27 which are subsequent to 1960. Therefore, in our view, the trial Court was right in dismissing the suit and holding that the 2nd defendant was not the legally wedded wife of Nadendla Sheshaiah. No relationship is established between the defendant No. 2 and Nadendla Sheshaiah. The will in favour of the plaintiff in O.S. No. 105 of 1985 is also not proved. Therefore now the only question which remains is whether the first wife was entitled to the properties of her husband. The marriage of defendant No. 1 with Nadendla Sheshaiah is not disputed. Since there was no other survivor therefore the defendant No. 1 was entitled to all the properties of late Nadendla Sheshaiah. After the death of Nadendla Sheshaiah, his properties rightly devolved on the defendant No. 1. The defendant No. 1 died during the pendency of the suit and before her death she bequeathed the properties in favour of defendants 3 to 6 under Ex. B-29. Ex. B-29 is proved to be correct and genuine document. No serious objections have been taken to Ex. B-29 even before this Court by the learned counsels appearing for the parties. Therefore we hold that Ex. B-29 was a genuine document.
35. For the reasons given hereinabove, we dismiss these three L.P.As. and uphold the judgment and decree of the learned single Judge and hold that the defendants 3 to 6 in O.S. 165 of 1980 are entitled to succeed to the properties belonging to Nadendla Sheshaiah in terms of Ex. B-29. No order as to costs.
Order dated 29-1-2005
A reference has been made to defendants 2 to 6 in the penultimate para of the Judgment. Since there were various suits, therefore the Registry pointed out as to in which suit the reference has been made. After hearing the learned counsel for the parties, we modify, clarify and direct that in the penultimate para of the judgment after defendants 3 to 6, 'in O.S. No. 165 of 1980' be mentioned.