IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV* FRIDAY, THE NINTH DAY OF MAY TWO THOUSAND AND TWENTY P > : r s- i V . irfrPtk o FIVE P' 00 " PRESENT the honourable justice dr / V R K KRUPA SAGAR ^^^QNQ-APPEAL NO: 1418 OF 9nin Appeal under section 100 of CPC., Decree passed by the learned X Additional District ^SSrieved by the Judgment and 1“' Appellate Court in A.S No.236/2010 by the Judge, (FTC), Narasaraopet, Guntur District, passed by the learned Principal Senior Guntur District in O.S. No. 135/1999 dt. reversing the Judgment and Decree Civil Judge, Narasaraopet, 25/03/2010 preferred this 2 nd appeal for the following grounds to be urged at the time of hearing. amongst other Between; T Nathani Ravindranath (Died), S/o.Late Venkata ^ Dootor, Hindu, Aged: 59 years, R/o,D.No.12-10-l' Narasaraopet Town, Guntur District. Subba Rao, Occ; j Prakash Nagar, (Died as per 2"^^ Appellant Appellant is recognized 2022 in S.A No.1418 of2010) 2. Nathani Bhargav Anand, Employee. R/o. D.No. Guntur District. per the Court Order dated 02.12.2022 2 I.A No.2 of as nd as LR of deceased 1« Appellant vide S/o. Ravindranath 12-10-1, Prakash Nagar, Narasaraopet aged; 28 years, Occ; Town, •■•Appellants/Respondents/Defendants AND Smt.Javvari Venkata Sesha Ratnam, W/o.late Narendra Prasad, aged. 61 years. Occ: Supervisor, Adult Education, C/o. Collector Office,. Prakasam District. Ongole. 1. ...Respondent/Appellant/Plaintiff l.A. NO: 2 OF 2010(SAMP. NO: 3071 OF 2010) 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 suspend the Judgment and decree dated 27/11/2010 passed in AS No. 236 of 2010 on the file of 10th Addl. District Judge (FTC), Narasaraopet, Guntur District. I A NO: 3 OF 2010(SAMP. NO: 3237 OF 2010) Between: 1. Smt.Javvadi Venkata Sesha Ratnam, W/o.late Narendra Prasad, Hindu, aged about 57 years, Employee, permanent resident of Door No.12-10- 1, Prakash Nagar and native of Narasaraopeta, Guntur District. ...Petitioner AND 1. Nathani Ravindranath, S/o.Late Subba Rao, Hindu, Aged about 55 R/o.D.No.12-17-23/13/1, Prakash Nagar, Narasaraopet Town, years, Guntur District. 2. Nathani Bhargav Anand, S/o.Ravindranath, Hindu, aged about 29 Occ: Software Engineer, Private Employee, Miyapur, Hyderabad. ...Respondents years. .^1 / 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 vacate the interim directions granted in S.A.M.P. 3071/2010 in S.A. No. 1418/2010 dated 16-12-2010. lA NO: 1 OF 2023 Petition under Order 41 Rule 27 R/w Section 151 of CPC., praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the mark the following documents as Exhibits on behalf of the Appellants/defendants; 1 .Order in C.M.A.No.480/2010 Dt.22-06-2010 2.Orders of the Tahsildar, Narasaraopet dt.27-04-2010 3. Proceedings of the Tahsildar, Narasaraopet Dt.10-06-2010. Counsel for the Appellant No.1: SRI V HARI HARAN Counsel for the Appellant No.2; SRI AMBATI SUDHAKAR RAO Counsel for the Respondent: SRI P VEERA REDDY, Senior Counsel assisting Smt. Sodum Anvesha The Court made the following Judgment: THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.1418 of 2010 JUDGMENT: This second appeal filed under section 100 CPC by 1. defendants calls attention to two competing wills pitted against each other by the natural siblings. Sole plaintiff before the trial court is the respondent herein. 2. Elaborate and meticulous arguments were advanced by Sri Sudhakar Rao Ambati for appellants and Sri P.Veera Reddy, the learned senior counsel being assisted by Smt.Sodum Anvesh, the learned counsel for respondent. Written arguments for appellants were filed. Legal authorities were cited on both sides. A learned Judge of this court on 16.12.2010 admitted this 3. second appeal on the following substantial questions of law. a. Whether the 1st Appellate Court is justified in holding that the Plaintiff is entitled to restitution of possession of the suit schedule property from the Defendant in the absence of any such pleadings and evidence thereof, b. Whether the 1st Appellate Court is right in directing the Appellant/ Respondent/Defendant to handover the possession of the suit property to the Plaintiff within one month from the date of judgement without any prayer to that effect by the Plaintiff in the suit. Dr.VRKSJ S.A.No.1418 of 2010 c. Whether the 1st Appellate Court is justified in directing the appellant to hand over the physical possession of the property to the Plaintiff having observed that the Defendant No.1 is in possession of the suit property, d. Whether the findings of the courts below on the genuinity of the Ex. A-2 are not perverse and illegal, e. Whether the first appellate court erred in granting a decree by merely rejecting Ex. B-5. 4. During the pendency of this appeal while the arguments were in progress, appellants filed I.A.No.1 of 2023 under Order 41 Rule 27 read with section 121 CPC praying for production of additional evidence in the form of three documents a. Order in C.M.A.No. 480 of 2010 dated 22.06.2010. b. Orders of the Tahsildar, Narasaraopet dated 27.04.2010 c. Proceedings of the Tahsildar, Narasaraopet dated 10.06.2010 A memo dated 08.05.2023 was also filed for appellants Praying to consider the following additional substantial questions of law. a. Whether the unsettling of a finding arrived by the Trial Court that the respondents/plaintiffs is not in possession of the schedule property as on the date of filing of the suit by the 1st appellate court is nothing but perverse and initiated by non-application of mind to the evidence available on record. S.A.No.1418 of 2010 b. Whether the decree in ordering restitution of schedule property to the respondent/appellant/plaintiff, without there being any reliefs sought for the same is perverse based upon non application of mind to the evidence available on record? c. Whether the unsettling of a finding arrived by the trial court that Ex.B-5 Will is genuine, is nothing but perverse and not based on evidence available on record. d. Whether the 1st appellate court is justified in ignoring the evidence on record to come to a conclusion that the respondents/appellants/plaintiffs is in possession of the property and whether such conclusion/finding is nothing but perverse finding and amounts to raising a substantial question of law. An extent of 15 cents of site along with a house bearing D.No.12-10-1 in Prakash Nagar locality of Narasaraopet is the 5. property in dispute. Sri Nathani Venkata Subbarao and Smt. Nathani 6. Basavamma are Hindu spouses. During their wedlock, they were blessed with two daughters, namely, Smt.Venkata Sesharatnam and Smt. D.Rajya Lakshmi. The Hindu spouses were also blessed with a son by name Sri N.Ravindranath. All the children Dr.VRKSJ S.A.No.1418 of 2010 were married, and they were blessed with their children . One of the daughters by name Smt. Venkat Sesharatnam O.S.No.135 of 1999 filed as against her brother Sri Ravindranth and her brother’s son/ Sri Bharagavanand. The prayer in the suit is with reference to the above immovable property and the prayer consequential permanent injunction restraining the defendants from interfering with plaintiffs peaceful possession and enjoyment of the plaint made was for declaration of title of the plaintiff and schedule property and for costs and such claimed that the plaint schedule other reliefs’. Plaintiff property was owned and possessed by her mother Smt.N.Basavamma and she executed a registered will dated 25.07.1997 in her favour and the testator of the will died on 28.05.1999, and thereby, she became the owner of the property. She further pleaded that in the suit schedule property, she along with her mother were living and she taking care of her aged mother, and it was out of love and affection, the property was given to her and since the defendants have been daiming otherwise and disturbing her position, the suit was laid. was 7. Di/Sri N.Ravindranath is her brother and he filed statement. His son/ Sri N.Bhargavanand filed a written a memo adopting 5 Dr.VRKS,J S.A.No.l418of2010 the written statement of his father. The pleaded case of them is that defendants have been in possession and enjoyment of this property and D1 was taking care of his mother during her lifetime and out of love and affection, she executed a will dated 24.05.1999 in favour of her grandson/ D2 and she died 28.05.1999 and in that way, the will executed in favour of D2 is the last will and the will propounded by plaintiffs is a forged and fabricated document. Thus, the defendants asserted their title and possession and prayed for dismissal of the suit. The suit was tried by the learned Principal Senior Civil Judge, Narasaraopet. On the rival pleadings, the following issues were settled. on 8. 1. Whether the Will dt. 25-7-97 is true and genuine ? 2. Whether the plaintiff is in possession and enjoyment of the suit schedule property as on the date of suit and entitled for permanent injunction as prayed for? 3. Whether the Will dt. 24-5-99 is true and genuine? 4. Whether the plaintiff is entitled for declaration as prayed for? 5. To what relief? On behalf of the plaintiff, PWs.1 to 13 gave their evidence. Exs.AI to A377 were exhibited for plaintiffs. For defendants, DW1 to 7 gave their evidence. Exs. B1 to B 107 were exhibited on their 9. 6 Dr.VRKS,J S.A.No.1418 of 2010 behalf. Fingerprint expert testified as CW.1 and Exs.XI to X29 and Exs.CI to C8 and Ex. M0.1 were marked. 10. It has been an undisputed fact on both sides that the testator Smt.N Basavamma was an illiterate. The will propounded by plaintiffs was marked as Ex.A2 and the will propounded by the defendants was marked as Ex.BS. Both the documents purportedly contain the thumb impression of the testatrix. The standard thumb impressions which were agreed upon by both sides, and the disputed thumb impression on the rival testaments were forwarded to the expert who examined them and with all the details gave his Ex. C7 opinion and Ex. C8 reasons for opinion, in the opinion of the thumb impression expert, Ex. A2 and Ex. B5 wills contain the thumb impression of the testatrix. This aspect of the matter has never been in dispute throughout this litigation. 11. The learned trial court read the entire evidence and stated that plaintiff having propounded the will testified as PW.1 and the will was supported through the evidence of the two attestors and the scribe/PWs.2,4 and 5 respectively and recorded that Ex. A2 will was proved. It then considered the evidence of D1 who gave evidence as DW.1 and that of the two attestors who testified as DW.2 and 3 and that of a notary who notarized the will and 7 Dr.VRKSJ S.A.No.l418of 2010 deposed as DW.7 and discarded the evidence of the scribe/DW.4 as he was not tendered for cross-examination and finally concluded that defendants proved Ex. B5 will. Thus, in the opinion of the trial court respective parties proved their respective wills. It then stated that Ex. B5 will dated 24.05.1999 is the last will and testament and by its effect the earlier will standing in favour of the plaintiff lost its significance. Since the plaintiff’s will had no more to be considered and since the plaintiffs case for declaration of title is based on such will and since such will was no more holds legal effect, it dismissed the prayer for declaration of title. It thereafter made some endeavour about competing claims of possession of plaint schedule property and then stated that since the plaintiff could not get the title declaration, and since the relief of permanent injunction was only consequentially prayed, it recorded that the plaintiff could not be granted any relief in the suit and accordingly dismissed the suit. The aggrieved plaintiff assailed the trial court’s judgment before learned X Additional District Judge (Fast Track Court), Guntur at Narasaraopet in A.S.No.236 of 2010. Learned first appellate Court on considering the record and rival submissions 12. 8 Dr.VRKSJ S.A.No.1418 of 2010 raised on both sides, framed the following points for consideration in the appeal. 1. Whether Ex A2-registered Will dated propounded by the plaintiff, is true and valid? 25-7-1997 2. Whether Ex.B5-unregistered Will dated 25-5-1999 propounded by defendant No. 2 is true and valid? 3. Whether the plea of the plaintiff that she was in possession of the suit property on the date of the suit is true? 4. Whether the plaintiff is entitled to decree of declaration of title to the suit property and also relief of injunction against the defendants as prayed for? 5. To what relief? 13. In view of the vociferous stands taken by both sides, the first appellate court reconsidered the entire evidence concluded that Ex. A2 will was proved. Thus, the first appellate court confirmed the findings of the trial court with reference to Ex. A2 will. Coming to Ex. B5 will of the defendants, the first appellate court found disagreement with the trial court’s observations and giving its own reasons recorded that Ex. B5 will was not proved. Thus, the earlier will which is Ex.A2 having been upheld, it declared the title of the appellant/plaintiff with reference to perpetual injunction. It made certain observations with reference to the orders of this court in C.M.A.No.480 of 2010 and did not and 9 Dr.VRKSJ S.A.No.1418 of 2010 grant relief of perpetual injunction but granted restitution of the property directing the defendants to deliver property to the plaintiff. The Operative portion of the judgement of the first appellate court reads as below. In the result, the appeal allowed setting aside the dismissal decree and judgment dated 25-3-2010 in O.S.No 135 of 1999 on the file of the PrI. Senior Civil Judge, Narasaraopet, and the suit is decreed in favour of the appellant/ plaintiff declaring her title to the plaint schedule property and that she is entitled to restitution of possession of the suit property from the defendants and hence the defendants are directed to handover physical possession of the suit property to the plaintiff within one month from the date of this decree and Judgment, failing which the plaintiff is at liberty to take necessary legal recourse against the defendants for possession of the suit property, with costs through out. 14. The aggrieved defendants have come up with this second appeal raising the earlier mentioned substantial questions and additional substantial questions of law. Pending this appeal, 1®* appellant/D1/ Sri N Ravindranath died. His son/ 2"‘^appellant/D2 was already on record and by order dated 02.12.2022 in I.A.No.2 of 2022, a learned judge of this court recognized 2"^* appellant as the legal representative of the deceased 1^'appellant. 15. It is in the above context of facts and legal events, the 16. second appeal has fallen for consideration. 10 Dr.VRKS,J S.A.No.1418 of 2010 Adverting to a few settled principles of law would minimize 17. the discussion. Ex. A2 is the registered will and prior in point of time. Ex. B5 is an unregistered will and is later in point of time. A will is not a compulsorily registerable document. Registration is optional. Registration of a document is public notice. Mere registration of a will by itself is not a basis to say that it is a genuine will. Merely because a will was not registered it cannot be a basis to say that the will was not believable. The place of execution of a will could be anywhere. Merely because it was executed at a place other than the place of the residence of a testator does not invalidate the will. Similarly, when a will is executed in the very place of residence of the testator that by itself may not be a ground to think that it is invariably a genuine will. A person is entitled to make any number of wills and there restriction for it in the Indian Succession Act, 1925 or 18. IS no elsewhere. However, it is the last will of the testator/ testatrix that shall be given affect to. When more than one will is brought to the attention of the court, it naturally raises a question as to what made the testatrix to execute another will while she had executed a will earlier. Usual curiosity makes it relevant to think as to 11 Dr.VRKS.J S.A.No.1418 of 2010 whether the latter will has made a mention about the former will not. Law may not have prescribed that every will shall mention about the earlier wills the testator or testatrix made. The question of mentioning or non-mentioning of earlier wills when a later will or was made was a matter of fact which falls for consideration while weighing the evidence led by parties. In this second appeal, it is the later will/ Ex.B5 that was upheld by the trial court and was rejected by the first appellate court that has fallen for consideration. The former will/Ex. A2 enjoys the concurrent approval of both the courts below. A will is liable to be revoked or altered by the maker of it at any time when he or she is competent to dispose of his/her property by will. In the absence of a will, the personal laws instances, wills are made to alter the Therefore, on the mere ground that a legitimate not given bequest by itself is not a ground to invalidate a will. There may be cases where will has conferred bequest strangers without offering any reasons for excluding the natural successors. Even in those cases, it was not a question of law to invalidate a will and always it has been a question of fact about appreciation of evidence to believe whether a will is proved or to governing succession operate. In many course of succession. successor was on total 12 Dr.VRKSJ S.A.No.1418 of 2010 disbelieve a will. It is in such and other related circumstances that the questions of suspicious circumstances surrounding the will have been considered by the courts. Legality of a document is different from the fact whether the evidence in proof of a document led before the court convinces a court to believe the existence and validity of a document or not. Based on the arguments advanced on behalf of the parties it appears the approach of both the courts below failed to notice the difference between the credibility of the evidence to act upon as against legal validity or invalidity of a document such as a will. Will is a document. Its proof is like any other document. A document contains contents. Proof of contents of a document 19. shall be by the production of the document. Truth or otherwise of such document and its contents shall be assessed on the sworn evidence of witnesses. 20. Whoever signs a document, the contents above the signature/thumb impression are stated to have been admitted by him. However, in the eyes of law mere subscribing signature with contents above it by itself is not sufficient to attribute the contents and the truthfulness of the contents of the person who signed it. Law requires material to think that the person signed the 13 Dr.VRKSJ S.A.No.1418 of 2010 document knowing the contents of it and signed it voluntarily. Only when such conscious signing of a document takes place, it is called due execution of a document. There are certain documents such as will where person 21. who made a bequest signs or impresses thumb impression. That itself is not execution. The demand of the law is that he or she must subscribe such signature or thumb mark in the presence of at least two persons. Those two persons must affix their thumb mark or signature to the gaze and in the presence of the person who made the will. A will is said to have been executed only when the testator signs or affixes thumb mark and the two attestors sign or affix thumb marks and anything lesser than that there is no execution of a will. Section 63 of the Indian Succession Act, 1925 requires these legal formalities. When it comes to proof of such a document at least one attestor shall testify as mandated in section 68 of Indian Evidence Act, 1872. At the bar precedent is cited on both sides with reference to will. For appellants/defendants, Kavita Kanwar Vs Pamela Mehta^ ; Shashi Kumar Banerjee Vs Subodh Kumar^ and Raj Kumari Vs Surinder Pal Sharma\ 22. ^(2021) 11 see 209 14 Dr.VRKS,J S.A.No.l418of 2010 In all these rulings, their Lordships had to deal with subject of wills and due execution of proof of such testaments before the courts. Their Lordships have also dealt with aspects concerning suspicious circumstances and the obligation of the propounder of the will to remove all legitimate suspicious circumstances and only on doing so, the court could accept such will as the last will of the testator. Their Lordships have stated suspicious circumstances include about the genuineness of the signature of the testator, the condition of the testator’s mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances and about the other indications in the will to show that the testator’s mind was not free. Participation of the propounder of the will in making of the will is one such circumstance which has to be dispelled with appropriate evidence. Learned counsel for respondent cited Meena Pradhan Vs Kamla Pradhan^ ; Murthy Vs C.Saradambaf. In those rulings also, their Lordships dealt with will and 23. stated that intention of the testator to make the testament must be ^AIR 1964 SC 529 ^2019 INSC 1388 ^(2023) 9 see 734 ^(2022) 3 sec 209 15 Dr.VRKSJ S.A.No.1418 of 2010 proved and propounder of the will, must examine one or more attesting witnesses. There shall be proof the testator signed the will out of his own free will, and at the time of execution he had sound state of mind and was aware of nature of effect thereto and will was not executed under any suspicious circumstances. Propounder has to remove all suspicious circumstances with regard to the execution of the will. 24. The appellants/defendants predicate their case that they have been in possession and enjoyment of plaint schedule property along with the mother of first appellant/ D1 and the testatrix intending to give some property to her son’s son/ grandson/ D2 executed Ex. B5 will. The pleaded case of defendants and the evidence of DW.1 is that his father was an Ayurvedic practitioner. Therefore, he having studied BAMS has been practicing Ayurvedic medical practitioner and he has been also manufacturing Ayurvedic medicines and that he has been doing it in the plaint schedule property Evidence brought on record include Ex.A132 which is the 25. registered sale deed dated 26.04.1997. Under this document, Smt. Vijayalakshmi, who is wife of first appellant/ D1 purchased a house bearing D.No. 12-17-23/13/1 Prakash Nagar, in 16 Dr.VRKS,J S.A.No.1418 of 2010 Narasaraopet. The suit disputed property is house bearing D.No.12-10-1, Narasaraopet. Ex. B5 will was executed on 24.05.1999. The executant of the will Smt.N. Basavamma died on 28.05.1999. Thus, within four days after the execution of the will she died. 26. The exact date of birth and the age of Smt. N.Basavamma by the time she died, were not brought on record. Ex. B5 will is not a registered document. In Ex. B5, the executant stated her age as about 67 years approximately. She has mentioned that for quite some time she has been experiencing blood pressure and has been a diabetic patient and suffering from those disorders. In it, she has mentioned that about this property, there were neither encumbrances nor had she executed any ' document with reference to this property. While so, coming to the encumbrances it has been the evidence of DW.1 himself that this property was mortgaged by his mother as a guarantor for certain debt he had borrowed from a bank, and that was subsisting by then. With reference to not executing any document concerning this property, there is on record. Ex. A2 registered will dated 25.07.1997 propounded by the plaintiff/respondent. Coming to the health condition of the testatrix, the 1®^ appellant/DI/DWI, in his 1 ~l Dr.VRKS,J S.A.No.1418 of 2010 cross-examination stated that during the lifetime of his mother, she took treatment from him as well as from allopathic doctors. He also deposed about certain treatment she had obtained from Dr. K. Venkateswara Rao who was an allopathic doctor. He said that on 24.05.1999, the day on which his mother executed the will in the suit schedule property, she was not suffering from any serious ill-health and there was no immediate threat to her life. He stated that for the last one year, his mother has been expressing her intention to give some property to her grandson, and on the date of Ex. B5 will she insisted on him very strongly to make arrangements to have the will prepared and executed on that day Itself. He also stated that the office of the Registrar in Narasaraopet was located at a distance of about hundred meters from the plaint schedule house, where Ex. B5 will was executed. He further stated that after execution of Ex. B5 will his mother insisted on having the will registered on that day itself. According to him on that day the will could not be registered for the that it was in the evening hours, the will was executed and the reason Registering officer was not in the office. In his cross-examination, he stated that in the next two days, there was no attempt to have the will registered. PW.7 has been an advocate since 1985 and 18 Dr.VRKS,J S.A.No.1418 of 2010 has been a notary since 1997. He spoke about N. Basavamma executing the will and himself attesting the will. He questioned in the cross-examination about his observations of the physical and mental condition of testatrix. DVW stated that seeing her, he thought that she was suffering from some ill health and found her sitting on a cot but he did not observe whether she was capable of moving from her bed or not. When the issue was further probed, he stated that DW.1 had come to him informing that his mother/ testatrix was unable to come to his office because of her ill health. It was in such circumstances, the notary/DW.7 himself came to her and participated in the legal event of execution of will by the testatrix. This evidence of DW.7 that he was informed of the inability of the testatrix to come out of the house to reach the notary was an information passed on to him by DW.1 and the witness/DW7 on seeing her also felt that she was not very healthy and was suffering from some ill health. If that being the condition of the testatrix as per the evidence of DW.7, the evidence of other witnesses/ attestors seem different. One of the attestors is Sri K. Sambasivarao and he testified DW.2 and in his examination in chief, he simply stated that the testatrix was in sound and disposing state of mind on 24.05.1999 was on as 19 Dr.VRKS,J S.A.No.1418 of 2010 and executed the will. In his cross-examination, he stated that when he had come to her on 24.05.1999/ date of execution of Ex. B5 will he found the testatrix hale and healthy and found her moving and, in his opinion, he did not find that she may die in the next four or five days. Sri R. Babu Rao is another attestor and he testified as DW.3 and in his examination in chief, he stated that the testatrix is in sound and disposing state of mind to execute the will. He also stated that he found testatrix hale and healthy and was freely moving. When he was probed further, he stated that testatrix was in such a position that she could get up and go to the Registrar’s office Narasaraopet to have the will registered. He further stated that the distance between the suit schedule property and the Registrar office in Narasaraopet is somewhere between 100 to 150 meters. When the evidence of these four witnesses are analyzed. 27. it is seen that both the attestors found the testatrix healthy. According to both, she was moving comfortably. According to DW.3 she was found fully capable of going to the Registrar office to have the will registered on that day itself. As against that DW.7/ the notary and the 1®' appellant/DW.1 stated that testatrix was not healthy, and she was unable to go out of the house and was 20 Dr.VRKS,J S.A.No.1418 of 2010 unable to go to the notary’s house. In other words, she could not go to the Registrar office to have the will registered. These contrary versions bear on their credibility. It is at this juncture, one has to notice the evidence of PW.10 and Ex.A133. PW 10/ Dr.C.Subbarao was a civil assistant surgeon in Primary Health Centre, Piduguralla during 1992 and 2003. Thus, by the time of Ex. B5 will dated 24.05.1999, he was a doctor in that Government PHC at Piduguralla. He stated that Ex. 133 is an outpatient sheet and all of it bears his own handwriting and it bears his hospital , stamp and he himself made entries of it in the relevant register. Having confirmed the authenticity of Ex. A133, he stated on oath that Smt. N.Basavamma was the patient and was shown to be aged about 65 years in Ex. A133 and on his diagnosis, he found she has been suffering from hypertension and diabetes, and she as an outpatient took treatment under him from 19.05.1999 to 25.05.1999. Be it noted testatrix belonged to Narasaraopet, and she obtained treatment at Piduguralla. DW.1 who claims to have been with his mother who also admitted the ill health of his mother for quite some time was not the one who took her to PW.10 at Piduguralla. According to plaintiff, they took the testatrix to that hospital for that treatment. Now the point of significance is n 1 Dr.VRKS,J S.A.No.l418of2010 that as per the entries in Ex.A133 and the evidence of PW.10, on 24.05.1999 she attended the hospital and obtained the treatment. It was precisely on 24.05.1999, according to appellants she executed the will at Narasaraopet. Thus, while undergoing treatment at Piduguralla, she must have completed her treatment on that day during morning time and came back to Narasaraopet and executed Ex.B5 will. The fact remains that on the date of execution of the will she was under medical treatment. The contention of appellants in their pleadings and the evidence of the two attestors that she was very hale and healthy and was moving and was capable of going out of the home and reaching the Sub Registrar office are to be considered together. If it is to be stated that she was not sick and did not obtain treatment under PW.10 then she was fully capable of going out and pursuing her instances of having the will registered if not on that day of execution at least on the next following day or a day after. That did not materialise. On the other hand, if she was not healthy and was sick and was under treatment of PW 10, even on the day of Ex. B5 will then that should have been properly pleaded and in the examination in chief appropriate evidence must have been given by DW.1. Thus, by various pieces of evidence, defendants 22 Dr.VRKS,J S.A.No.1418 of 2010 have created real suspicion to rely on their case especially with reference to health condition of the testatrix. Be that as it may. None of the sickness attributed to the testatrix is with reference to her mental disposition. However, physical ailment will have its own bearing on the comfortable disposition of mind of anyone and that can never be lost sight of. 28. According to the attestors/ DW.2 and 3 when the will was made by the testatrix, her son/D1/1st appellant was very much there in the house. Therefore, when the will was made, presence of D1 is the evidence on record. D1 deposing as DW.1 stated that the preparation of a will took place from 4 PM in the evening and was completed by 07.30 PM in the evening. He stated that Sri Sastry prepared the draft on the instructions of the testatrix and the draft was completed by 5 PM. By 5.45 PM, the fair copy of it was got typed and this was got done by the scribe and he was not aware whether the scribe himself got it typed or he got it typed through someone else. He does not know as to what happened to the draft of Ex.B5. He stated that by 03.30 PM, DW.3/one of the attestors/ came. Thereafter, the other attestor/ DW.2 came. After both came only he secured the scribe to have 23 Dr.VRKS,J S.A.No.1418 of 2010 the will prepared. What is crucial to be noticed in his evidence in his own words reads as below. After preparation of Ex.B5 will, the same was handed over to my mother. After my mother affixed her thumb mark on Ex.BS will, the two attestors of Ex.BS put their signatures thereafter the advocate notary Sri Prasad Reddy affixed some stamps on Ex.BS and made an endorsement on Ex.BS by putting his signature and thereafter, the scribe put his signature on EX.BS. then only Ex.BS was handed over to my mother”. Thereafter, he stated that his mother insisted him on it and to have the will registered on that day itself and as the scribe advised him to have it attested by a notary, he personally then went to the house of Sri Prasad Reddy at about 05.00 or 05.15 PM whose house is at a distance of half a kilometer. He went and requested him and he accordingly came and attested the will. Crucial thing to be observed in this evidence is that according to DW.1, the testatrix impressed her thumb mark and both the attestors attested by signing the will and the scribe also signed it and it thereafter only he procured DW.7/ the notary. Let what DW.7 stated on oath. DW.7 stated that one Mr. Babu Rao and Rama Chandra Rao subscribed their signatures and attested EX.B5 will in his presence. Then he stated that it was not Rama Chandra Rao but it was Sambasiva Rao who was one of the was us now see 24 Dr.VRKSJ S.A.No.1418 of 2010 attestors. He also said that one Mr.Sastry prepared Ex.B5 will. He then said " In my presence, the executant of Ex.BS will by name Basavamma put her thumb mark on Ex.B5 will and in my presence, the attestors of Ex.BS will also put their signatures on Ex.BS will. The person who prepared Ex.BS will by name Sastry also put his signature as scribe on Ex.BS will. Thereafter I put my signature on Ex.BS will as notary.” Thus, according to DW.7, the thumb mark of testatrix and the signatures of the attestors and that of the scribe took place only in his presence. In other words, the execution, which includes attestation did not take place in his absence. This version is totally contrary to the evidence of DW.1 according to whom it was after execution and attestation, the notary Sri Prasad Reddy/ DW.7 was procured. Inconsistencies in the narration of crucial events of witnesses do not augur well in proving the case propounded by the appellant. Ex.BS will does not indicate the place of its preparation and execution. According to the evidence of DW.1,2 and 3 all that done in the suit schedule property, namely. Door No. 12-10-1. However, according to DW.7, it did not take place there but it took place at the other house near 60 feet road in Narasaraopet. From the evidence, it is clear that the said other house is Door No.12- 29. was 25 Dr.VRKSJ S.A.No.1418 of 2010 17-23/13/1 covered by Ex.A132 registered sale deed standing in favour of wife of first appellant/DI. Thus, the place at which Ex.BI will was made and executed has no consistency as per the evidence adduced on behalf of the appellant. Possession of suit schedule property: - The pleaded case of respondent/plaintiff is that she has been in possession and enjoyment of the property and the prayer made in the suit is for declaration of her title based on Ex.A2 will seeking protection of her possession and consequential permanent injunction was prayed for. In the written statement of defendants they refuted the allegations made in the plaint and claimed title for D2 under Ex.BS will and asserted their continuous possession of this property even by the date of filing of the suit, counter claim praying for any relief. The written 30. and There was no statement did not raise any issue that the plaintiff was not in possession and the suit is bad for omitting to pray for delivery of possession. It was with these pleadings the dispute went for trial. Learned trial court at paragraph No.44 of its judgment stated that and main concentration of plaintiff was on her possession oral and documentary evidence was produced to sustain her assertion of possession of the property. After voluminous 26 Dr.VRKS,J S.A.No.1418 of 2010 adverting to the evidence produced on behalf of the plaintiff with reference to possession and even after considering M0.1 CD (Compact Disc), it refused to grant the relief of injunction stating that injunction is only a consequential relief in the suit which could have been granted had the primary relief of declaration been granted but not otherwise. At Paragraph No.48, it further mentioned that the plaintiff may have proved over the suit schedule property but failed to prove valid possession with title. With reference to the possession asserted by the defendants/appellants herein, it considered the evidence led on their behalf that the defendants were shown to be in possession of the suit schedule house bearing D.No.12-10-1, Narasaraopet. Plaintiff preferred appeal in A.S.No.236 of 2010 and the learned first appellate court reappreciated the entire evidence and recorded that plaintiff was entitled for all the reliefs prayed in the suit. It disbelieved the possession asserted by the defendants. It recorded its observations as to where the trial court faltered. It stated that defendants were in possession of the house purchased in the name of wife of the defendant which is house bearing D.No. 12-17-10-23/13/1 of Narasaraopet but not the suit schedule property. While the first appeal was pending mere possession 27 Dr.VRKS,J S.A.No.1418 of 2010 before the learned first appellate court, the plaintiff/appellan t therein filed I.A.No.256 of 2010 under Order 39 Rules 1 and 2 CPC with a prayer to grant temporary injunction. By an order dated 27.04.2010, the learned first appellate court dismissed the said petition. Aggrieved by that, the plaintiff/ 1 appellant preferred CMA.No.480 of 2010 before this court. By an order dated 22.06.2010, a learned Judge of this court dismissed the said C.M.A.No.480 of 2010 and the relevant portions of the said order read as below; - “By the time A.S.No.236 of 2001 was presented by the appellant herein, there was no order of injunction or status-quo, that operated vis-a-vis the respondents. The appellant categorically states that on 27/04/2010, the day on which the lA was dismissed, the respondents have highhandedly dispossessed her. The matter would have been altogether different had there been a finding to the effect that she is in possession of the schedule property. The order of status-quo granted in favour of the appellant ceased to be operative, with the dismissal of the suit. However, the very initiation of proceedings under Section 145 of the Code of Criminal Procedure, even while civil proceedings are pending before the Courts, is totally untenable. Therefore, the Civil Miscellaneous Appeal is dismissed. It is held that the respondents shall be entitled to remain In possession of the property but subject to the outcome of the appeal. The lower appellate Court shall dispose of the appeal within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. ” 28 Dr.VRKS,J S.A.No.1418 of 2010 31. The above order in C.M.A.No.480 of 2010 makes it clear that the defendants in the suit were permitted to remain in possession of the property during the pendency of the first appeal and that permission is subject to the outcome of the judgment of the first appellate court. In the context of the above orders court in C.M.A.No.480 of 2010, the observations and conclusions reached by the first appellate court in the impugned judgment and of this the last three paragraphs required to be extracted here, a. Having regard to the above facts and observations I hold that the plaintiff has proved her actual physical possession over the plaint schedule house property prior to filing of the suit and at the time of filing of the suit and also during pendency of the suit, and that the observation of the Honourable High Court in C.M.A. to the effect that the respondent shall be entitled to remain in possession of the property was due to forceable occupation of the suit property by the defendants, after the disposal of injunction application of the plaintiff during pendency of the suit and appeal and on the other hand, the defendants have totally and miserably failed to prove the alleged possession of the suit property prior to filing of the suit and at the time of filing of the suit and also immediately after filing of the suit. Accordingly, this point is answered, b. In the light of the categorical findings on points 1 to 3 supra, the plaintiff is entitled to declaration of title on the suit schedule property to the effect that she is the owner of the suit schedule property, but in view of the observations and finding of the Honourable High Court in C.M.A. to the effect that the respondent (defendant) shall remain in possession of the suit property till disposal of the matter and in the light of the categorical findings on point No.3 supra, the plaintiff is entitle to restitution of possession of the suit schedule property from the defendants. Hence the defendants directed to handover physical possession of the suit are 7q Dr.VRKS,J S.A.No.1418 of 2010 property to the plaintiff within one month from the date of this Judgment and in view of these circumstances the relief of injunction sought for by the plaintiff cannot be granted. Accordingly, this point is answered, c. In the result, the appeal is allowed setting aside the dismissal decree and Judgment dated 25-3-2010 in O.S.No. 135 of 1999 on the file of the PrI. Senior Civil Judge, Narasaraopet, and the suit is decreed in favour of the appellant plaintiff declaring her title to the plaint schedule property and that she is entitled to restitution of possession of the suit property from the defendants and hence the defendants are directed handover physical possession of the suit property to the plaintiff within one month from the date of this decree and Judgment failing which the plaintiff is at liberty to take necessary legal recourse against the defendants for possession of the suit- property, with costs through out 32. In the present second appeal preferred by the defendants in the suit valiant arguments are advanced questioning the correctness of the above portion of the judgment of the first appellate court. It is contended that the relief for recovery of possession has not been a prayer in the suit and the first appellate court committed legal error in granting such a relief of possession to the respondent/plaintiff. 33. As against that respondent/plaintiff contended that factual findings of the trial court concerning possession of property were reversed by the first appellate court and in the normal course, it could have granted relief of declaration as well as permanent injunction but it granted only declaration and did not grant 30 Dr.VRKS,J S.A.No.1418 of 2010 injunction in view of the observations of this court in C.M.A.No.480 of 2010 and there is absolutely no illegality in the order passed by the first appellate court. It is further contended that this is not a case of restitution under section 144 CPC since the contentious possession by either of the parties was not out of any judgment or decree by a court, but they were only mere assertions and denials. The 1®‘ defendant/ 1®‘ appellant/ Sri N.Ravindhranath filed 34. his examination-in-chief by way of affidavit dated 13.02.2003 and thereafter filed additional affidavit dated 28.02.2006. In the last page of this additional affidavit what is mentioned is extracted here. “In fact the plaintiff on the date of the suit got appointed a Commissioner to show that she is in the possession of the property but the plaintiff waited for several days and tresspassed into the property and got the Commissioner to the scheduled property and the police constables were also there as I already given a report. The witnesses examined on behalf of the plaintiff are the close associates, friends and relatives and also planted witnesses by the plaintiff's son-in- law and they are not residing in the scheduled mention property. I along with my family member residing in the schedule mentioned property. ’’ In fact, the plaintiff on the date of the suit got appointed a commissioner to show that she is in possession of the property but the plaintiff waited for several days and trespassed into the 35. Dr.VRKS,J S.A.No.1418 of 2010 property and got the commissioner to the suit schedule property and police constables were also there as already they have a report. In the written statement what was pleaded in paragraph No.4 is mentioned below. Originally the father of the plaintiff and this defendant M/as a resident of Pamidipadu and he came down to Narasaraopet in the year 1958 settled as an Ayurvedic Doctor at Narasaraopet. Vacant site u/as purchased in the year 1967 in the name of the mother of the plaintiff and the defendant and subsequently out of the joint earnings of this defendant and the father of the respondent a tiled house was constructed for residence in the year 1990. Subsequently in the year 1993 zinc sheet sheds were constructed for extension of the medical practice and for preparation of the medicines on the eastern side of the residential portion and even now this defendant has been manufacturing the medicines and practising Ayurvedic doctor and residing with his family members In Door No.12-10-1 which Is evident from several documents. Thus, the pleaded case of defendants is that D1/ Sri N.Ravindranath has been a practicing Ayurvedic Doctor and has been manufacturing medicines in the suit schedule Door No.12- 10-1. This written statement is dated 31.08.2000. He was cross- examined during trial from 07.09.2006 onwards. In his as an cross- examination he stated that during the year 1997, a house was purchased in the name of his wife and there he has been running his nursing home for his patients. He further stated that he has been manufacturing Ayurvedic medicines in that house. Thus, his 32 Dr.VRKSJ S.A.No.1418 of 2010 evidence on oath falsifies his pleaded stand in the written statement. 36. In this cross-examination, DW.1 stated that he and his wife obtained passports showing his residential address as D.No. 12- 17-10-23/13/1. Undisputedly that is not the suit property. In his cross-examination, he made certain admissions stating that at Manukondavari Palem Village, he had a factory till 1989 and with reference to those factory transactions a suit was also filed in O.S.No.350 of 1997 and there was certain postal correspondence pertaining to that suit transaction and all of them showed his residential address at Manukondavari Palem Village which is not the suit schedule property. He was shown telephonic directory during his cross- examination since he denied about telephonic connection being available or not in the said house. After verifying Ex.A112 he admitted that the husband of 1®‘ plaintiff was shown to be holding telephone connection in the suit property/ D.No. 12-10-1 with 37. telephone No.27837. He further admitted from Ex.A112 that his own name N.Ravindhranath was shown to be resident of D.No. 12-17-10-23/13/1 with telephone No.27732. These and several other documents and oral evidence of various witnesses were 33 Dr.VRKSJ S.A.No.1418 of 2010 considered by the learned first appellate court which recorded that there was clear proof to show that the plaintiff possession and not the defendants. Learned counsel for respondent/plaintiff cited Bansidhar Sharma Vs State of Rajasthan^. That was a case where a suit was filed for possession and rendition of accounts and permanent injunction. The suit was dismissed by the trial court and the first appellate court and SLP was also dismissed by their Lordships. However, during the pendency of first appeal before the High Court of Rajastan, certain interim orders concerning possession were passed in favour of the plaintiff. Finally, when the first appeal of the plaintiff was dismissed observations were recorded stating that the appellant/ plaintiff did not have any rights over the subject matter property and the possession which was obtained by him by the plaintiff/ appellant by virtue of the interim orders of the first appellate court, the plaintiff/ appellant was directed to hand over the possession to the defendant. Such orders challenged before the Hon’ble Supreme Court of India on two grounds. That the said order violated section 144 CPC and that first appellate court had no jurisdiction and the restitution has to was in 38. were 'air 2019 sc 5643 34 Dr.VRKSJ S.A.No.1418 of 2010 be made by an application before the court of first instance. Their Lordships repelled those contentions stating that the by the opposite party was not under decree was thereafter reversed and therefore section application. The principle of doctrine of restitution possession or judgment which 144 CPC has no is that on the reversal of a decree, the law imposes obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the court by its action had displaced them. 39. The judgment of the trial court got merged in the judgment of the first appellate court. In the judgment of the first appellate court plaintiff in the suit has been found in possession of the property prior to the suit, at the time of the suit and subsequent the suit. In such circumstances, it granted the declaration and ought to have granted consequential injunction but by to of title virtue Dr.VRKS.J S.A.No.1418 of 2010 C.MAN0.480 of 2010 it resisted itself from doing it and passed the order akin to restitution. There is no illegality involved in it. of orders in Learned first appellate court considered the entire oral and documentary evidence and appreciated the evidence and in accordance . What are 40. recorded its findings. Therefore, its judgment is with the facts and law and cannot be called perverse stated to be substantial questions of law by the appellants in this be called substantial second appeal are not in true sense can questions of law. It is only questions of fact that have emerged for consideration. The concurrent approval of Ex.A.2/will by both the courts below bind this court. With reference to reasons and Ex.B.5/will recorded by first appellate court, this conclusions on court holds that they are in accordance with facts and law. There Therefore, no is no perversity in the impugned judgment, called for. All the points are answered against the interference is appellants. the result, this Second Appeal is dismissed. 41. In 36 Dr.VRKSJ S.A.No.1418 of 2010 As a sequel, miscellaneous applications, shall stand closed. pending, if any, Sd/- K TATA RAO DEPUTY REGISTRAR \ //TRUE COPY// SECTION OFFICER To, 1 • The X Additional District Judge, (FTC) District.(wlth records) 2. The Principal Civil Judge (Senior District.(with records) 3. One CC to Sri V Hari Haran 4. One CC to Sri Ambati Sudhakar 5. One CC to Smt. Sodum Anvesha 6. The Section Officer, V.R Section, 7. Three CD Copies Narasaraopet, Guntur Division), Narasaraopet, Guntur Advocate [OPUC] Rao, Advocate [OPUC] , Advocate [OPUC] High Court of Andhra Pradesh. SAM vna • HIGH COURT DATED:09/05/2025 JUDGMENT + DECREE SA.No.1418 of 2010 §. 1 'vO DISMISSING THE SECOND APPEAL IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV FRIDAY, THE NINTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR SECOND APPEAL NO: 1418 OF 2010 Between: 1. Nathani Ravindranath (Died), S/o.Late Venkata Subba Rao, Occ: Doctor, Hindu, Aged: 59 years, R/o.D.No.12-10-1, Prakash Nagar, Narasaraopet Town, Guntur District. (Died as per 2'"'^ Appellant as per the Court Order dated 02.12.2022, 2 Appellant is recognized as LR of deceased 1®* Appellant vide I.A No.2 of 2022 in S.A No.1418 of 2010) nd 2. Nathani Bhargav Anand, S/o.Ravindranath, aged; 28 years, Occ: Employee, R/o. D.No. 12-10-1, Prakash Nagar, Narasaraopet Town, Guntur District. ...Appellants/Respondents/Defendants AND 1. Smt.Javvari Venkata Sesha Ratnam, W/o.late Narendra Prasad, aged: 61 years, Occ: Supervisor, Adult Education, C/o. Collector Office, Prakasam District, Ongole. ...Respondent/Appellant/Plaintiff Appeal under section 100 of CPC., aggrieved by the Judgment and Decree passed by the 1®* Appellate Court in A.S No.236/2010 by the learned X Additional District Judge, (FTC), Narasaraopet, Guntur District, reversing the Judgment and Decree passed by the learned Principal Senior Civil ^Judge, Narasaraopet, Guntur District in O.S. No. 135/1999 dt. 25/03/2010 preferred this 2'^^ appeal for the following amongst other grounds to be urged at the time of hearing. This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and decree of the Lower Court and the material papers in the appeal and upon hearing the arguments of Sri V Hari Haran, for the Appellant No.1 and Sri Ambati Sudhakar Rao, for the Appellant No.2 and Sri P Veera Reddy Senior Counsel assisting Smt. Sodum Anvesha for the Respondent. This Court doth order and decree: 1. That the second appeal be and is hereby dismissed. Sd/- K. TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The X Additional District Judge, (FTC), Narasaraopet, Guntur District. 2. The Principal Civil Judge (Senior Division), Narasaraopet, Guntur District. 3. Three CD Copies SAM vna T HIGH COURT DATE0:09/05/2025 DECREE SA.No.1418 of 2010 DISMISSING THE SECOND APPEAL