H APHC010446952002 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NINALA JAYASURYA AND THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO LETTER PATENT APPEAL NO: 163 OF 2002 Appeal under Clause 15 of the Letters Patent, against the judgment and decree made in A.S No.2445 of 1987 dated 13-03-2002 passed by the Honourable Single Judge, reversing the judgment and decree passed by the Subordinate Judge, Anakapalle in O.S No. 61 of 1984 dated 05-07-1987 and dismissing the suit. Between: 1. Tekkali Mahaiaxmamma(Died) 2. Adah Satyanarayana, son of Venkataramana, Hindu, aged 68 years, 3. Adah Mahalaxmamma, wife of Surayya, aged about 40 4. Kandregula Varahalamma, wife of Lakshminaidu, Hindu, aged about years. years. 58 5. Malla Satyanarayanamma (Died) Per LRs A- 6 TO 10, - 6. Adah Mahalaxmamma, D/o Late Govinda Rao, aged about 62 Cultivation, R/o.Pataveedi, Dimili Visakhapatnam. 7. Malla Parasuramu, S/o Late Govinda Rao years, Road, Yellamanchili (M), aged about 60 years, r/o. Munagapaka, Panchayat Street, Munagapaka(M), Visakhapatnam (Dist). 8. Malla Venkata Rao, S/o Late Govinda Rao, aged about Cultivation, R/o.Pataveedi, Dimili Visakhapatnam. 58 years. Road, Yellamanchili (M). 9. Malla Satyanarayana, S/o Late Govinda Rao, aged about 49 years, Cultivation, R/o. Munagapaka (M), Visakhapatnam District. 10. Malla Apparao, S/o Late Govinda Rao, aged about 45 years. Cultivation, r/o. Munagapaka (M), Visakhapatnam(Dist). Appellants 6 to 10 are brought on record as LRs of Deceased appellant as per the Hon’ble C.O.Dt:19-8-15 in LPAMP-4/2014. ...Appellants AND 1. Tekkali Appalanaidu (died) 2. Tekkali Mahalaxmi, wife of Appalanaidu, Hindu, aged about 65 years 3. Tekkali Ramana Babu, son of Appalanaidu, Hindu, aged about 40 years ...1®' Defendant All are cultivators, r/o Munagapaka(post) Anakapalli mandal, Visakhapatnam District ...Appellants/R5in AS/Respondents 4. Adari Narasingarao, S/o Venkataramana, aged 58 years, Munagapaka, Anakapalli Mandal, Visakhapatnam. ...Respondents lA NO: 1 OF 2004fCMP 7277 OF 2004 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S.NO.46/96 on the file of Fast Track Court, Ankapalle. Counsel for the Appellants : Sri K. Sairam Murthy representing Sri K V Subrahmanya Narusu Counsel for the Respondent: Sri Patanjali Pamidighantam The Court made the following order: THE HON’BLE SRI JUSTICE NINALA JAYASURYA AND THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO LETTER PATENT APPEAL No. 163 of 2002 JUDGMENT: {PerHon’ble Sri Justice Tarlada Rajasekhar Rao) The present Letter Patent Appeal is filed discontended with the judgment and decree in A.S. No: 2445 of 1987 dated 13.03.2002 of a Learned Single Judge of the High Court of Andhra Pradesh at Hyderabad in reversing the judgment and decree dated 05.07.1987 in O.S. No. 61 of 1984 on the file of Subordinate Judge Court, Ankapalle. 2. For ease of reference, the parties in this LPA will be referred as follows: the Plaintiff who initiated suit O.S. No. 61 of 1984 will be referred to as the 1®‘ Plaintiff and PW1 (Plaintiff No. 5 Who examined as PW1). The sole defendant in the case will be referred to as DW1. The trial Court referred the parties in a similar way. 3. The original suit, O.S. No. 61 of 1984, was filed by the first plaintiff seeking a permanent injunction. After two amendments were introduced, the relief sought was modified to include a declaration of title and, if the Court determines that the plaintiffs are not in possession of the properties in question, a request for was 2 . 1^1 consequential possession relief. Following the death of the first plaintiff, plaintiffs 2 to 5 were added based on the will dated 21.05.1978, which is marked as Exhibit A18 and is said to have been executed by the 1st plaintiff. Another suit O.S. No. 12 of 1987 was filed by the PW1 and 4. her two children for declaration of title and for consequential relief of possession and for past and future profits at the rate of 50/- per month basing on the registered settlement deed dated 01.11.1972 St marked as Ex.A.54 is said to have been executed by the 1 Plaintiff. Both the suits were clubbed together and the learned Sub- 5. ordinate Judge Court, Ankapalle delivered the common judgment dated 05.07.1987. Relationship in between the parties: 6. Tekkali Mahalaxamamma who is the wife of Parasuramudu @ Musili, the 1®' plaintiff filed original suit, O.S. No. 61 of 1984 seeking a permanent injunction. After two amendments were introduced, the relief sought was modified to include a declaration of title and consequential recovery of possession and on the death of the 1®^ plaintiff on 06.05.1980, the plaintiff 2 to 5 were added basing on the Will executed by the 1®^ plaintiff. Plaintiff No.5 was 3 examined as PW1 in the suit. The 5^^ plaintiff is the younger sister daughter and foster daughter of 1 Plaintiffs 3 and 4 are the sisters of plaintiff No.5 and 2"^ plaintiff is the husband of 3^^ plaintiff. Defendant No.1 is the son of 1®* Plaintiff (Mahalaxmamma) in O.S. No: 61 of 1984. Defendant No.2 is formal party added as directed by the High Court in C.R.P. No. 161 Plaintiff Mahalaxmamma. of 1982. Pleadings in the plaint in nutshell: 7. All the properties more fully described in the schedule attached along with the plaint are self acquisition of the 1®* plaintiff and no one has got any right in the property and the 1®‘ plaintiff is in exclusive possession and enjoyment of the schedule properties with absolute right and she has been paying taxes thereon. While so, the 1®* plaintiff executed a registered Will dated 05.02.1978 bequeathing all her properties after her death, the defendant (DW1) is aggrieved and bent upon harassing the 1®* plaintiff with the help of his wife and three years back (before institution of the suit) the defendant along with his henchmen harvested and carried away the paddy crop standing in Ac.0-25 cents and prevented the 1®' plaintiff from attending to their agricultural operations. Subsequently after filing of the suit, 1®* plaintiff executed a 4 registered Will dated 21.05.1978 in a sound and disposing state of mind and later died, as such the plaintiffs 2 to 5 are in continuous possession and enjoyment of the suit property and also further asserted that the defendant (DW1) filed suit O.S. No. 70 of 1978 on the file of the Principal Subordinate Judge, Visakhapatnam for partition and the same was dismissed on 17.04.1981. Hence the defendant cannot maintain any defence, as the dismissal of the suit filed for partition operates as res-judicata and doctrine of estoppel applies. The defendant (DW1) filed his written statement asserting that 1®* plaintiff executed Will dated 05.02.1978 (Ex-BI) in his favour and denied the execution of the Will dated 21.05.1978 (Ex- A18) in favour of the plaintiffs 2 to 5 and also denied all the 8. assertions made in the plaint and it is further asserted that plaint schedule properties are the joint family properties of the 1 St defendant and his late father Parasuramudu has considerable ancestral properties consisting of houses, lands and money lending and the 1®^ plaintiff is manager of the property while he was minor, the 1®* plaintiff continued the said business, 1®' plaintiff is not having any independent source of income and she developed the properties of the joint family and the parents of the 1®^ plaintiff are 5 not financially sound and they have not provided any movable or immovable properties to plaintiff; fundamentally denied the exclusive right of the plaintiff over the suit schedule property. Basing on the above pleadings, the learned trial Court Judge has framed several issues. The relevant issues were framed as additional issues which are extracted here under; the 1®* issue was framed on 21.08.1985 after introducing.the 1®' amendment and the 2 and 3 were framed on 21.05.1986 after introducing the 2 9. nd issues amendment: 1. Whether the Will dated 21.05.1978 said to have been executed by Tekkali Mahalaxmamma is true, valid and on the 1®^ Defendant? 2. Whether the dismissal of suit O.S. No. 70 of 1978 on the file of the Principal Sub-Court Visakhapatnam operates as resjudicata? 3. Whether the plaintiffs are entitled to the declaration and possession prayed for? The learned trial Court judge, after evaluating both the documentary and oral evidence, decreed the suit in favour of the plaintiffs. The judge noted that the name of the 1®* plaintiff, (Mahalaxmamma), was consistently reflected in all the sale deeds and documents marked as exhibits in the 'A' series. This 10. conclusion was reached despite the finding that there was suggest that Mahalaxmamma had sold any gold, which was supported by the testimony of PW1. no evidence to It is also opined that the Will was proved under Section 63 of Indian Succession Act, 1925. The plaintiffs have called upon the attestation of the Will 11. the the attestors and the scribe, as necessitates the presence of two or more witnesses who must either witnessed the Testator sign the document or received acknowledgment from the Testator regarding the the will. Additionally, the Will was attested in have personal signature on accordance with Section 68 of the Indian Evidence Act, which outlines the requirements for presenting evidence to prove the execution of a document that must be attested as mandated by law. Discontented with the Judgment and Decree dated 05.07.1987 in O.S.No.61 of 1984 on the file of Subordinate Judge, Ankapalle, the 1®' defendant filed regular Appeal under Section 96 of CPC before the erstwhile High Court of Andhra Pradesh at Hyderabad vide A.S. No.2445 of 1987. A learned single Judge of the common High Court has allowed the appeal and reversed the 12. 7 judgment of the trial Court, some pertinent observations are provided below: 1. There is evidence that she has no property of her own and she was not doing any independent business apart from the business carried out by her husband Parusuramudu and the evidence adduced also show that the parents of (Mahalaxmamma) were not in a satisfactory state of affairs as the documents executed by them would always show that they have been mortgaging the property, selling the properties from time to time. The question of disposing her ornaments for purchase of property that too from her own mother would not appeal to the conscience of a man of ordinary prudence and ho affluent lady would sell her gold ornaments to purchase the other properties. The way in which she came to the house of the Parusuramudu @ Musili, the manner in which the parents of (Mahalaxmamma)were dealing with their property clinchingly establishes that Mahalaxmamma had no property at all when Ex B-7 sale deed was executed in her favour. Merely because it was mentioned that the amount was paid by Mahalaxmamma, it cannot be presumed that it is her own money without establishing the source. There is no clear identification of own source at any point of time either before the Ex B7 or subsequently and when she is not able to establish that she had possessed Rs. 500/- when Ex B7 was executed and it is unbelievable that she has purchased 8 funds. The trial subsequent properties out of her own court record and come to an erroneous Mahalaxmamma was having sufficient funds to purchase the properties and also to finance the property under Ex therefore it cannot be said that she has has completely misconstrued the evidence on conclusion that B7. And purchased the property under Ex B7 from out of her own funds. The learned single judge has answered the issue relating to 13. principle of res-judieata as provided under; for declaration of title and for The first suit was consequential relief of possession and the later suit was filed basis of the document Ex A54 registered settlement on the deed, both the suits are quite different and the issues different even though they are tried simultaneously. are The learned Judge placed reliance on the judgment of the Hon’ble Supreme Court in Narahari Vs Shanker reported in AIR 1953 SC 419, wherein it was observed that “the question of res- judicata arises only when there are two suits. Even when there are two suits the decision given simultaneously cannot be a decision in former suit. 14. Discontented with the Judgment and Decree dated 13.03.2002 in A.S. No. 2445 of 1987, the present appeal was filed 15. 9 under clause 16 of Letters Patent on two contentious grounds: (1) that the learned single erred in reversing the finding of the trial court where the Will was proved as contemplated under law (2) that the appeal filed by the 1®' defendant should have been dismissed applying the principle of res-judicata under section 11 of CPC as the defendant did not prefer any appeal against the judgment in O.S. No: 12 of 1987 when both suits viz., O.S. No; 61 of 1984 and O.S. No: 12 of 1987 were clubbed and tried together and a common judgment was delivered decreeing both the suits. On the other hand, the learned counsel for the 1®* defendant 16. filed brief written submissions, raised the following contentions: a. The defendant having shown that there was a joint family nucleus, does the burden shift to the plaintiff to prove that the schedule properties are self-acquired and has the plaintiff discharged this burden? b. When by the year of death of the husband of the plaintiff i.e., 1939, the law in force was The Hindu Women's Right to Property Act, 1937, which does not grant any right to women in agricultural properties, does the defendant not become the sole, absolute owner of all properties with his mother i.e., plaintiff 10 acting merely as his guardian when dealing with said properties? c. Does merely exhibiting the Will by the testatrix herself in the plaint prove the Will more particularly when suspicious circumstances have been attributed by the defendant herein? “He quoted the following three judgments : (1) H Venkatachala Iyengar v. S.N. Thimmajamma reported in AIR 1959 SC 443; (2) Rani Purnima Devi v. Kumar Khagendra Narayan Dev reported in AIR 1962 SC 567; (3) Indu Bala Bose v. Manindra Chandra Bose reported in (1982) 1 SCC 20 17. Heard learned counsel for the Appellant in (LPA) Sri K Sairam Murthy and Sri Patanjali Pamidighantam for respondents 2 and 3 who are wife and son of Defendant Nol in the suit. 18. The Court frames the following issues for consideration; 1. Whether the plaintiffs 2 to 5 were able to prove that the properties were acquired by the 1st plaintiff, and is there any reference to this in the plaint? 2. Whether there are any alleged suspicious circumstances, and they have been clarified by the propounder of the Will? 11 3. Whether the principle of res-judicata applies to the facts of the case? 4. Whether the judgment of the trial court is sustainable under law? 19. Answer to Issue No; 1; A perusal of the plaint clearly shows that entire case of the plaintiffs was that 1st plaintiff is the owner of the suit schedule property and that the first defendant had encroached upon it. There was no pleading in the plaint about how did the 1st plaintiff got over the property and it was introduced during the course of evidence how the 1®* plaintiff got the property. PW1 who is the 5*^ plaintiff cannot plead on behalf of 1st plaintiff about the right and title over the property who filed the suit for declaration and right title over the suit schedule property. And it is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it and that the object and purpose of pleading is to enable the adversary party to know the case it has to meet and that in order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. Any amount of 12 evidence without a pleading cannot be looked into as per the settled legal position. This Court relies on the following decisions for the above said proposition Rajgopal (dead) by LRs v. Kishan Gopal and another reported in (2003) 10 SCC 653 ; precluded from taking cognizance of evidence in the absence of specific pleading in the plaint or written statement”. Further, in the decision in Ram Sarup Gupta v. Bishun Narain Inter College reported in (1987) 2 SCC 555 it was reiterated that “the well settled principle that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered and it is reiterated and held that it is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it and that the object and purpose of pleading is to enable the adversary party to know the case it has to meet and that in order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be 20. that the courts are taken by surprise”. The learned single judge of the common High Court has categorically answered or addressed the issues in favor of 21. 13 Defendant No. 1, noting that there is evidence indicating she (the 1®* plaintiff) has no property of her own and was not engaged in any independent business outside of her husband Parusuramudu. Furthermore, the evidence adduced also show that the parents of (Mahalaxmamma) were not in a satisfactory state of affairs as the documents executed by them would always show that they have been mortgaging the property selling the properties from time to time. Hence the issue is answered against plaintiffs. 22. Answer to Issue No: 2; The settled principle of law that the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. If a caveator alleges fraud, undue influence, coercion etc., in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testator was acting of his own free will. 14 In the case of Shivakumar and Ors. Vs Sharanabasappa 23. and Ors. reported in (2021) 11 SCC 277, the Supreme Court after traversing through the relevant decisions summarised the principles. The principles enunciated in paragraph Nos.12.5 to 12.9 are instructive as regards the onus of proof on the propounder to dispel the suspicious circumstances, when a circumstance can be said to be suspicious and the illustrative cases which may stoke such suspicion and the satisfaction of judicial conscience of the Court. They read as under: "12.5; If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the Testator and/or as to whether the Testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 12.6; A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.' 15 12.7: As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature: a feeble or uncertain mind of the Testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder etc. are some of the circumstances which may give rise to suspicion. The circumstances above noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the Testator and his signature coupled with the proof of attestation. 12.8: The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will? 16 12.9: In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will. The Apex Court in the recent judgment in Meena Pradhan and others vs Kamala Pradhan and others reported in (2023) 9 see 734 following the judgment in Shivakumar and Ors. V/s. Sharanabasappa and Ors. reported in (2021) 11 SCC 277 held that whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator’s last will. In such cases, the initial onus on the propounder becomes heavier. And further held that suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind”. Whether a particular feature would qualify “suspicious” would depend on the facts and circumstance of each case. Any circumstance raising suspicion legitimate in nature would qualify as suspicious circumstances, for example, a shaky signature, a feeble mind, unfair and unjust disposition of property , the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc. 24. as ■ -Sf’ 17 25. In the case of Ramabai Padmakar Patil vs. Rukminibai Vishnu Vekhande and others reported in (2003) 8 SCC 537 wherein it was enunciated that a Will is executed to alter the mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at ail of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. 26. The registration of the Will does not provide the assurance about the genuineness of the Will, nor does it dispel the suspicious circumstances. Reliance was placed on the decision of the Hon’ble Supreme Court in the case of Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another reported in AIR 1962 Supreme Court 567., wherein the Supreme Court enunciated the law as under: 18 "23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the vyill) that the testator knew that it was a will the execution of which he was admitting, the fact that the will Was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon; (see, for example, Vellasaway Sarvai v. L. Sivaraman Servai, (ILR 8 Rng 179: (AIR 1930 PC 24), Surendra Nath v. Jnanendra Nath (AIR 1932 Cal 574) and Girji Datt Singh v. Gangotri Datt Singh (S) (AIR 1955 SC 19 346), Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting." (emphasis supplied)' A useful reference, in this context, can be made to the 27. judgment of the Supreme Court in the case of Leela Rajagopal and others vs. Kamala Menon Cochran and ors. reported in (2014) 15 see 570, wherein the Supreme Court emphasised that the judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration. 28. The Supreme Court in the case of Veerattalingam & Ors. Vs. Ramesh & Ors. reported as AIR 1990 SC 2001 (2203) held that the court while construing a Will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances, the position of the testator, his family relationship 20 and probability that he used the words in a particular sense must also taken into account. They lend a valuable aid in arriving at the correct construction of the Will. The Supreme Court has time and again has held that the court should, to the extent legally permissible give effect to the intention of the testator. The intention has to be gathered by reading the Will as a whole. As far possible, the effect should be given to every clause in the Will as each clause therein is important as the other. It was further argued that Section 87 of the Indian Succession Act provides that the intention of the testator shall not be set aside because it cannot take effect to the full extent but, effect is to be given to it as far as possible. The paramount intention of the testator should be given effect to in determining the intention of the testator, the entire Will has to be looked into and all clauses in a Will, will have to be read together. The courts have held time and again that if the dispositive words in the Will are clear and unambiguous, the court is bound to enforce them. Even if there is any ambiguity, it is necessary to ascertain the declared intention of the testator from other clauses of the Will and also the surrounding circumstances. The Supreme Court has categorically held that cardinal maxim to be observed, is to ascertain the intention of the testator from the as 21 language of the document which is to be read as a whole without indulging in any conjecture or speculation. (Refer: Gnambal Ammal Vs. T.Raju Ayyar and Ors. reported in AIR 1951 SC 103) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion." 29. In Bharpur Singh & Ors., v. Shamsher Singh, reported in 2009 (3) SCO 687, the Hon’ble Supreme Court at Paragraph 16 30. has stated the following three aspects that must be proved by a propounder; (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free Will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law. Courts would be justified in making a finding in favour of propounder, and (iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion." 16 22 31. Thereafter, in paragraph 23, the Apex Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner:- "Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason leaving everything to a stranger instead of family (iv) The dispositions may not appear to be the result of the testator's free Will and mind. (v) The propounder takes a prominent part in the execution of the Will. (vi) The testator used to sign blank papers. (vii) The Will did not see the light of the day for long, (viii) Incorrect recitals of essential facts." 32. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. That suspicion cannot be removed by the mere assertion of the 23 propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. In the light of the aforesaid exposition of law, we would like to deal with the broad suspicious circumstances pressed into 33. service on behalf of the Defendants. In the present case on hand, as admitted in the plaint the 1 plaintiff has executed Ex.B1 dated 05.02.1978 to her son and there is nothing stated in the Will why the Will Ex B1 was cancelled and another Will was executed in favour the plaintiffs 2 to 5 vide EX.A18 dated 21.05.1978 rather than her own son, merely 34. Mahalaxmamma’s son filed a suit against her mother not a ground to cancel the Ex.BI and it is peculiar and it is pertinent to note that 24 EX.A18 was executed after instituting of the suit when there is a registered settlement dated 01.11.1972 Ex.A53 is in favour of PW1 and to her two sons, executing the Will Ex A18 creates some suspicion. PW1 had been examined on various spells or sessions, on 10.07.1986 PW1 stated in the cross-examination that she didn't know why the 1®* plaintiff (Mahalaxmammma) had executed EX.A18, nullifying the Will Ex.BI, which had been executed in favor of her son DW1. It is relevant to mention that one of the attestors is PWl's brother, and another is a close associate of the other attestor. It is also important to address the reason behind the three-day delay in registering the Ex A18 Will. The Will was executed on 21.05.2018, but was not registered until 24.05.2018. While the presence of the attestors is not necessary for the registration of Ex A18 Will before the Registrar, submitting the document for registration three days later raises concerns and lends support to the defendant’s claim that the document was not executed by the 1®' Plaintiff (Mahalaxmamma) but rather by PW1. All the above suspicious circumstances have not been clarified by presenting convincing evidence. The trial Court did not address these suspicious circumstances. The trial Court addressed the matter by merely noting that the attestors were examined and that 25 the requirements of Sections 63 of the Indian Succession Act of 1925 and Section 68 of the Indian Evidence were met. It is plausible to believe that the first plaintiff did not willingly 35. execute the Will. It was due to minor discords between the mother and son, the 1®' defendant, as well as the plaintiff, which A cumulative allowed PW1 (plaintiff 5) to obtain a new Will. consideration of the aforesaid factors renders it unsafe to draw an inference that the Will has been proved to the satisfaction of the conscious of the Court free of the suspicious circumstances. In the result of the aforesaid discussion coupled with the judgments cited by this Court, issue No.2 is decided in favor of the defendants and against the plaintiffs. Hence the issue which is answered by the trial Court is unsustainable in the light of the above discussion. 36. Answer to Issue No: 3: ORDER 41 deals with appeals from Original Decrees. As per Rule 33 of Order 41, which provides for Power of Court of Appeal “the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the 26 V. appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. 37. Though Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41, Rule 33 CPC. (See the judgment of apex court Banarsi And Ors vs Ram Phal reported in 2003 (9) SCC 606). 38. In both suits, the plaintiffs are seeking a declaration of rights over the suit schedule properties. However, the plaintiffs have not 27 successfully established the rights of the 1st plaintiff to the suit schedule properties. If the appellate court allows the appeal in one of the suits, that finding will also apply to the other suit as the properties in the suit schedule are one and the same, as there has been no appeal filed by Defendant No. 1 against O.S. No: 12 of 1987 on the file of the Subordinate court Anakapalle. Consequently, the argument that the principle of res judicata applies to the facts of this case is unfounded or lacks merit. 39. Answer to Issue No. 4: In the facts and circumstances of the case, it can reasonably be presumed that taking advantage of the quarrels between the mother and son entered the home of the first plaintiff, (Mahalaxmammma), and attempted to unlawfully or deceitfully acquire her properties by using force and obtained Ex A54 registered settlement deed and Ex A18 Will dated 21-05-2018 by cancelling the Will Ex B1 which is strong suspicious and cleverly testified that she is not aware of the fact of cancellation of Will Ex B1 dated 05-02-1978 executed in favour of son of 1st plaintiff, (Mahalaxmammma). 40. The counsel for respondent in LPA had raised the issue When by the year of death of the husband of the plaintiff i.e. 28 1939, the law in force was The Hindu Women's Right to Property Act, 1937, which does not grant any right to women in agricultural properties, does the defendant not become the sole, absolute owner of all properties with his mother i.e., plaintiff acting merely as his guardian when dealing with said properties?” As the point raised, though for the first time in the present appeal, in view of the legal aspect involved, it is deemed appropriate to deal with the same. 41. 41. Section 3 of the Hindu Women's Rights to Property Act, with which we are concerned, reads thus: Devolution of property - (1)When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son. 42. Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son. 29 Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. (2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a made owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies. In Smt. Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293 = 1951 see 420 : a Bench of four Judges of the Supreme Court observed thus; 43. “As seen from Section 3(1) Hindu Women's Rights to Property Act abrogates the general rule of Hindu Law according to which a widow succeeds to her deceased \ husband's property only in default of male issue and she is 30 now entitled to the same share as a son along with or in default of a male issue.” 44. And it further held that the language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a Will is not enough to exclude the operation of the Act. The Will must be an operative Will and if the Will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property is non- testamentable", and no testamentary disposition of such property is possible or could take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property. The issue relating to non-applicability of the 1937 Act to 45. agricultural land was resolved by Amendment Act 26/1947 and by virtue of such Amendment Act, the Act 1937 was made applicable to agricultural lands with effect from 26.11.1946 i.e., effective date of Amendment Act. (refer judgment of Madras High Court in Umayal Achi Vs. Lakshmi Achi, 1945 (1) MLJ 108) as observed in paragraph No.3. 31 46. Considering the detailed discussion and the legal precedents set forth by the Apex Court in the previous paragraphs. the judgment and decree of the Appellate Court in A.S. No.2445 of 1987 dated 13.03.2002 is sustainable; and the Suit O.S. No. 61 of 1984, on the file of the Subordinate Court, Anakapalle, is rightly dismissed. In the result, the Letter Patent Appeal fails and is 47. accordingly dismissed. Interlocutory Applications if any pending in this Letter Patent Appeal, shall stand closed. Sd/- S.V.S.R. MURHTY JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The Subordinate Judge, Anakapalle, Visakhapatnam District, (with records) 2. The Section Officer, V.R. Section, High Court of Andhra Pradesh, Amaravati. 3. One CC to Sri K V Subrahmanya Narusu, Advocate [OPUC] 4. One CC to Sri Patanjali Pamidighantam, Advocate [OPUC] 5. Two CD Copies Stu RAM HIGH COURT DATED:07/07/2025 g n Jut i| Current Secuon ■ JUDGMENT LPA NO. 163 OF 2002 DISMISSING THE LETTER PATENT APPEAL