Andhra Pradesh High Court – Amravati
G. Radhya Krishna Murthy And Others vs Paresh Charan Das Gupta on 10 March, 2026
APHC010155182006
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY,THE TENTH DAY OF MARCH
TWO THOUSAND AND TWENTY SIX
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
APPEAL SUIT NO: 299/2006
Between:
G. Radhya Krishna Murthy and Others ...APPELLANT(S)
AND
G Subba Rao Died and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. A RAJENDRA BABU
Counsel for the Respondent(S):
1. SRINIVASA RAO BODDULURI
2.
The Court made the following:
Reserved on 03.02.2026
Pronounced on 10.03.2026
Uploaded on 10.03.2026
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
APPEAL SUIT No.299 of 2006
JUDGMENT:
This Appeal, under Section 96 of the Code of Civil Procedure [for short
„the C.P.C.’], is filed by the Appellants/defendant Nos.1 and 2 challenging the
Decree and Judgment, dated 27.03.2006, in O.S.No.03 of 1998 passed by the
learned III Additional District Judge, Guntur [for short „the trial Court’].
2. The appellants herein are the defendant Nos.1 and 2 and the
Respondent No.1 herein is the plaintiff in O.S.No.03 of 1998 and the
respondent Nos.2 to 9 are the defendants in the said suit. During the
pendency of the appeal, the respondent No.1 died and his Legal
Representatives were brought on record as respondent Nos.10 to 14.
3. Originally, the respondent No.1/plaintiff herein filed the suit in O.S.No.03
of 1998 against the defendants seeking for declaration of title over the plaint
schedule properties and for delivery of possession of Item Nos.2 to 9 of the
same and mesne profits from 13.01.1998 onwards over the plaint schedule
properties till the delivery of possession of the properties situated at
Prattipadu, and for consequential permanent injunction in respect of item No.1
of the plaint schedule house property.
4. Both parties in the Appeal will be referred to as they are arrayed before
the trial Court.
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5. The case of the plaintiff/respondent No.1 as per the plaint averments in
O.S.No.03 of 1998, in brief, is as follows:
Originally, the plaint schedule item Nos.1 to 4 belongs to one Kakani
Appaiah of Prattipadu Village and the said Appaiah married one Bullemma,
who is the 2nd daughter Gorijavolu Rosaiah and Seshamma, and the said
Gorijavolu Rosaiah and Seshamma gave birth to three (03) male children by
names Venkatapaiah, Raghavaiah and Ananda Rao and four (04) female
children Rushiyamma, Bullemma, Seetharavamma and Tulasamma. The
plaintiff further pleaded that the 3rd daughter of Gorijavolu Rosaiah and
Seshamma, by name Seetharavamma was given in marriage to one Ginjupalli
Veeraiah and the said Ginjupalli Veeraiah and Seetharavamma had three (03)
male children and the plaintiff is the eldest son of their male children
The plaintiff further pleaded that he is none other than the younger
sister‟s son of Kakani Bullemma alias Annapurnamma and the said Appaiah
and Bullemma have only one daughter by name Anasuyamma and she was
given in marriage to her maternal uncle by name Gorijavolu Ragavaiah. The
3rd son of Gorijavolu Rosaiah and Seshamma, by name Gorijavolu Ananda
Rao has got one daughter by name Konduru Sesharatnam and one son by
name Gorijavolu Syamsundar Rao through his 1st wife by name
Lakshmayamma and also got five sons. The said Kakani Appaiah during his
lifetime executed a registered Will dated 09.04.1962, bequeathing his
properties i.e. plaint „A‟ schedule properties to his wife Bullemma and the
plaint „B‟ schedule properties were given to his daughter Gorijavolu
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Anasuyamma and subsequently, the said Kakani Appaiah died in the year
1969. The plaintiff further pleaded that after the demise of the said Appaiah,
his wife Bullemma resided with his brother Raghavaiah and her daughter
Gorijavolu Anasuyamma, till the death of Raghavaiah in the year 1974, and
the said Bullemma and Anasuyamma never partitioned the properties covered
under the Will dated 09.04.1962, said to have been executed by Kakani
Appaiah and all the properties which are covered under the said Will were
looked after by the said Raghavaiah during his lifetime.
The plaintiff further pleaded that Gorijavolu Anasuyamma, after the
demise of her mother Bullemma, further looked after her entire properties till
the year 1987 and the defendant No.3 herein, who is none other than her
brother-in-law‟s son pretending to assist her in managing the properties,
clandestinely got executed the General Power of Attorney from the said
Anasuyamma on 15.06.1987, by playing fraud and got registered the same in
the Sub-Registrar Office, Prattipadu. On coming to know the mischief
committed by the defendant No.3, the said Gorijavolu Anasuyamma,
immediately cancelled the said General Power of Attorner, dated 15.06.1987,
by issuing a legal notice dated 20.06.1987 and a publication to that effect was
also given in Eenadu Daily Newspaper on 01.07.1987. Gorijavolu
Anasuyamma during her lifetime while she was in a sound and disposing state
of mind, executed a registered Will dated 28.03.1990, bequeathing all her
properties i.e. the plaint schedule property in favour of the plaintiff vide
Registered Document bearing No.130/1990. The defendant No.3 under the
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guise of fabricated and forged Will dated 30.04.1978, said to have been
executed by Bullemma, mischievously filed a suit in O.S.No.54 of 1993, on the
file of the I Additional Munisif Magistrate, Guntur, against the Gorijavolu
Anasuyamma and also against the plaintiff and his wife for recovery of alleged
possession over the northern half of Item No.1 of plaint schedule property and
the said suit was dismissed on 23.02.1996, on contest and later, the appeal
vide A.S.No.63 of 1996 is preferred by the defendant No.3 against the plaintiff
herein and others.
The plaintiff further contended that Gorijavolu Anasuyamma died on
24.09.1997, in Item No.1 of the schedule property tiled house bearing door
No.9/65, while she was living along with the plaintiff and his wife and in the
said house, the plaintiff performed the obsequies of his sister Anasuyamma as
per the will and wishes. At the time of the funeral of Gorijavolu Anasuyamma,
one of the brother of the defendant herein by name Gorijavolu Rosaiah, under
the pretext of lodging a complaint before the Station House Officer, Prattipadu,
against the plaintiff, stalled the funeral of Anasuyamma till 9.00 p.m. on
24.09.1997, at the instance of defendant No.3 herein and with the assistance
of the Prattipadu Police and with a evil idea to grab away the property out of
the properties bequeathed under the Will and by virtue of the said Will
executed by Anasuyamma, the plaintiff is the absolute owner of the schedule
property. The plaintiff further pleaded that on 13.01.1998, the defendants
illegally occupied the plaint schedule property by trespassing into the plaint
schedule property and have been residing the plaint schedule house and
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trespassed into the properties including Item Nos.2, 3 and 4 of the schedule
properties and that the plaintiff is constrained to file the suit.
6. The case of the appellants/defendant Nos.1 and 2 as narrated in the
written statement is as follows:
After the death of Appaiah, Anasuyamma and her mother Bullemma
were living together and there was nobody to look after them and as such the
defendant No.3 was looking after them and he was also attending the
management of the properties of Anasuyamma as well as the properties of
Bullema. While so, the defendant No.3, who was employed as teacher was
originally worked at Prathipadu and was transferred to Gottipadu and other
places, so that he could not live and he got shifted along with his family, at
where he was posted as a teacher. Taking advantage of the absence of the
defendant No.3, the plaintiff joined in the house of Anasuyamma and
pretended as if he was looking after Anayasumma and got obtained a
fraudulent Will dated 28.03.1990, purporting to have been executed by
Anasuyamma. They further pleaded that the said Will is only got up with and
assuming that it was signed by Anasuyamma, it was not executed by her
voluntarily by knowing the contents of the alleged Will. The very fact that the
Item Nos.7 to 9 of the plaint schedule property are different items separated
with each other, which are shown in the said Will as if Item Nos.7 to 9 are
contiguous, Item Nos.7 to 9 are different items and in between Item Nos.7 & 8,
the defendant No.8 possessed a land. They further pleaded that in the alleged
Will dated 20.03.1990, it was also mentioned that Ac.0.05 cents of site also
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bequeathed, but, she did not possess any such land as mentioned in the Will.
The contents of the Will itself shows that the Will was brought up by playing
fraud or somebody must have impersonated the said Will purported to have
executed by Anasuyamma. They further pleaded that after procurring the
document from Anasuyamma, purported to have executed by her, the plaintiff
started ill-treating her and even tried to occupy the houses bequeathed to the
defendant No.3, and that the defendant No.3 was constrained to file the suit in
O.S.No.54 of 1993, on the file of the Junior Civil Judge, Guntur, in respect of
the Northern portion of Item No.1 of schedule property and so far as the Item
No.2 is concerned, it was not the subject matter of O.S.No.54 of 1993.
The plaintiff having obtained some documents used to harass
Anasuyamma and neglected to look after her, as she was under the clutches
of plaintiff, she sent a word to the defendant No.3 and requested the
defendant No.1 to come over and executed a Will voluntarily on 10.08.1997,
bequeathing her property to the defendant Nos.1 and 2. For fear of further
ill-treatment by the plaintiff, she wanted the defendants to keep the Will as
secret without disclosing to the plaintiff and that the defendants were looking
after Anasuyamma and helping her in all respects. The Will dated 10.08.1997,
said to have been executed by Anasuyamma, in a sound and disposing state
of mind voluntarily bequeathing the property which she got from her husband
as well as from her father in favour of defendant Nos.1 and 2 to be enjoyed
equally. In pursuance of the said Will, the defendant Nos.1 and 2 took
possession of the property and they are in possession of the property covered
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under the Will executed in their favour subsequent to the death of the testatrix.
The defendant Nos.1 and 2 further pleaded that since they are in a
possession and enjoyment over the plaint schedule property by virtue of the
Will said to have been executed by the original owner Anasuyamma, dated
10.08.1997, and that the plaintiff is not entitled to seek for relief of declaration
of title and recovery of possession of the plaint schedule property as sought
for. Therefore, the defendants prayed to dismiss the suit with costs.
7. Based on the above pleadings, the trial Court framed the following
issues:
1) Whether late Gorijavolu Anasuyamma, the sister of the plaintiff
executed a Will dated 28.03.1990 bequeathing the plaint schedule
property in favour of the plaintiff, while she is in a sound and disposing
state of mind and it is a genuine one?
2) Whether the registered Will dated 30.04.1978 relied upon by the third
defendant, said to have been executed by late Annapurnamma is a
forged document?
3) Whether late Anasuyamma executed a Will dated 10.08.1997 in a
sound and disposing state of mind bequeathing the property which she
got from her husband in favour of the defendant Nos.1 and 2 and it is
true and valid?
4) Whether the defendant Nos.1 and 2 are in possession and enjoyment of
the property under the Will dated 10.08.1997 after demise of late
Anasuyamma?
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5) Whether the lease in respect of the landed property of late
G.Anasuyamma in favour of Reddy Nageswara Rao is true and valid?
6) Whether the plaintiff forcibly occupied item No.1 of the plaint schedule
property under the guise of injunction?
7) Whether the plaintiff is entitled to relief of declaration that he is the
absolute owner of the schedule property?
8) Whether the plaintiff is entitled to the relief of possession in respect of
the plaint schedule property?
9) Whether the plaintiff is entitled to mesne profits as prayed for from
13.01.1998 till the date of delivery of possession of the property?
10) Whether the plaintiff is entitled to consequential relief of
permanent injunction in respect of plaint schedule property? and
11) To what relief?
The following additional issue was framed by the trial Court:
1) Whether the fourth defendant is the legal heir of Anasuyamma and he is
entitled to share of the plaint schedule property?
8. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 to P.W.4 were examined and Ex.A-1 to Ex.A-42 were marked. On
behalf of the defendants, D.W.1 to D.W.4 were examined and Ex.B-1 to
Ex.B-17 were marked.
9. After completion of the trial and on hearing the arguments of both sides,
the trial Court decreed the suit partly vide its judgment, dated 27.03.2006,
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against which the present appeal is preferred by the
appellants/defendant Nos.1 and 2 in the suit questioning the Decree and
Judgment passed by the trial Court.
10. The defendant No.3 herein filed a suit in O.S.No.54 of 1993, before the
I Additional Junior Civil Judge Court, Guntur, against Anasuyamma, the
plaintiff herein and his wife for recovery of possession over the northern half of
Item No.1 of the plaint schedule property and the said suit was dismissed by
the trial Court on 23.02.1996, against which an appeal was preferred by the
defendant No.3 herein, who is the plaintiff in the said suit in O.S.No.54 of 1993
vide A.S.No.63 of 1996. The appellants herein/defendant Nos.1 and 2 are not
the parties to the said suit in O.S.No.54 of 1993 in connected with A.S.No.63
of 1996, the appeal filed by the defendant No.3 herein vide A.S.No.63 of 1996
and the present suit in O.S.No.03 of 1998 were clubbed and a common
judgment was pronounced on 27.03.2006, by the learned III Additional District
Judge, Guntur, wherein the III Additional District Judge Guntur, allowed the
appeal in A.S.No.63 of 1996 filed by the defendant No.3 herein,
Anasuyamma, plaintiff herein and his wife have not preferred any second
appeal against the decree and judgment passed by the learned III Additional
District Judge, Guntur in A.S.No.63 of 1996.
11. Heard Sri M.R.S.Srinivas, learned Senior Counsel on behalf of
Sri A.Rajendra Babu, learned counsel for the appellants/defendant Nos.1 and
2 and Sri Srinivasa Rao Bodduluri, learned Counsel for the
respondent/plaintiff.
VGKR, J.
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12. Learned counsel for the appellants would contend that the judgment
and decree passed by the trial Court is contrary to law, weight of evidence and
probabilities of the case. He would further contend that the trial Court failed to
observe that Ex.A-1 Will dated 28.03.1990, has not proved in accordance with
law and there are several suspicious circumstances in the evidence of the 2 nd
and 3rd attestors and they have not satisfied the ingredients of Section 69 of
the Indian Succession Act and also the ingredients of Section 68 of the Indian
Evidence Act. He would further contend that the trial Court failed to discuss
the evidence of the attestors in Ex.B-4 Will and came to a wrong conclusion
that Ex.B-4 Will is not a genuine one. He would further contend that the
learned trial Judge came to awrong conclusion without appreciating the
evidence on record and decreed the suit and as such the appeal may be
allowed by setting aside the decree and judgment passed by the trial Court.
13. Per contra, Learned counsel for the respondent/plaintiff would contend
that on appreciation of entire evidence on record, the learned trial Judge
rightly partly decreed the suit and there is no need to interfere with the finding
arrived by the learned trial Judge in its judgment.
14. Now, in deciding the present appeal, the points that arise for
determination are as follows:
1) Whether Ex.A-1 Will dated 28.03.1990, is proved in accordance
with law?
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2) Whether Ex.B-4 Will dated 10.08.1997, is proved in accordance
with law?
3) Whether the plaintiff in O.S.No.03 of 1998, on the file of III
Additional District Judge, Guntur, is entitled to the relief of
declaration of title and recovery of possession over the plaint
schedule property?
4) Whether the trial Court is justified in partly decreeing the suit in
O.S.No.03 of 1998?
15. Point No.1:
Whether Ex.A-1 Will dated 28.03.1990, is proved in accordance
with law?
The plaintiff herein approached the civil Court seeking for declaration of
title and recovery of possession of plaint schedule property in O.S.No.03 of
1998. Since the plaintiff approached the civil Court for declaration of title and
possession, it is for the plaintiff to prove his right and title in the plaint
schedule property. The legal position in this regard is perfectly clear that “in a
suit of this description, if the plaintiffs are to succeed, they must do so on the
strength of their own title and they have not supposed to defend upon the
weaknesses in the case of the defendants”. The title of the plaintiff is based
on the alleged Will dated 28.031990, said to have been executed by
Gorijavolu Anasuyamma.
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16. The appellants/defendant Nos.1 and 2 are relying on Ex.B-4 Will dated
10.08.1997. In Ex.B-4 alleged Will, wherein, it was recited that the plaintiff
herein has obtained signatures on several papers and fraudulently
Anasuyamma was taken to the Sub-Registrar Office and her signatures were
obtained on several papers by playing fraud and got registered before the
Sub-Registrar, and subsequently she came to know that the plaintiff herein
created a Will dated 28.03.1990, and she bequeathing the plaint schedule
property herein in favour of the defendant Nos.1 and 2/appellants herein
under Ex.B-4 Will. Here, the defendant Nos.1 and 2 have not approached the
Court for seeking relief of declaration of title. Admittedly, as per the plaint
averments, the defendants are in the possession and enjoyment over the
plaint schedule property. The plaintiff herein approached the Court for seeking
of relief of declaration and also for recovery of possession of the plaint
schedule property. The plaintiff further pleaded that they were dispossessed
by the defendant Nos.1 and 2 illegally on 13.01.1998. Therefore, it is for the
plaintiff to prove that he is in the possession over the plaint schedule property
till the date of dispossession i.e. on 13.01.1998. According to both the parties,
Gorijavolu Anasuyamma was the original owner of plaint schedule property
and the said Anasuyamma died on 24.09.1997. Ex.A-1 Will is seriously
disputed by the defendants, since the title of the plaintiff is based on Ex.A-1
Will, the said Will has to be proved in accordance with law beyond reasonable
doubt.
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17. The law is well settled that even though the alleged Will is a registered
Will, no importance will be given to the registered Will and it cannot be treated
as a genuine Will unless it is proved in terms of Section 68 of the Indian
Evidence Act, 1872 read with Section 63 of Indian Succession Act, 1956.
Section 68 of the Indian Evidence Act reads as under:
“68. Proof of execution of document required by law to be attested –
If a document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a Will, which has been
registered in accordance with the provisions of the Indian Registration Act,
1908 (16 of 1908), unless its execution by the person by whom it purports to
have been executed is specially denied.”
It is evident that in cases where the document sought to be proved is
required by law to be attested, the same cannot let be in evidence unless at
least one of the attesting witnesses has been called for the purpose of proving
the attestation if any such attesting witness is alive and capable of giving
evidence and is subject to the process of the Court. Section 63 of the Indian
Succession Act deals with execution of unprivileged Wills and, inter alia,
provides that every Testator except those mentioned in the said provision
shall execute his Will according to the rules stipulated therein. It reads:
“63. Execution of unprivileged wills.- Every testator, not being a soldier
employed in an expedition or engaged in actual warfare, or an airman so
employed or engaged, or a mariner at sea, shall execute his will according to
the following rules:
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(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by
his direction.
(b) The signature or mark of the testator, or the signature of
the person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the writing
as a Will.
(c) The Will shall be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the Will
or has seen some other person sign the Will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgment of his signature or mark,
or the signature of such other person; and each of the
witnesses shall sign the Will in the presence of the testator, but
it shall not be necessary that more than one witness be
present at the same time, and no particular form of attestation
shall be necessary.”
18. In order to substantiate the case of the plaintiff, to prove Ex.A-1 Will, the
plaintiff examined himself as P.W.1 and also examined the two (02) attestors
in the Will as P.W.2 and P.W.3. P.W.1 is the plaintiff, he admitted in his
evidence in cross examination itself that he had two (02) sons and two (02)
daughters and he possessed a house which is situated at about 500 yards
away from Item No.1 of the schedule property in another street and at about
three (03) years ago i.e. in the year 1998, he sold away his own house and
after vacating the said house, he started to live in the Item No.1 of the plaint
schedule property and prior to joining in Item No.1 of the plaint schedule
property, Anasuyamma was looking after the schedule property. He further
stated that four or five days after the execution of the Will, Anasuyamma
handed over the Will to him and he was not present at the time of execution of
Ex.A-1 Will and on the date of execution of Will itself it was registered. He
further stated that he has not having any disputes or enmity with Cherukuri
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Radha Krishna Murthy, who is the attestor under Ex.A-1. Cherukuri Radha
Krishna Murthy is alive and he further states in his evidence that after the date
of Ex.A-1, Anasuyamma executed a General Power of Attorney in his favour
and he pleaded ignorance whether there are any differences of opinion
between Anasuyamma and the defendant Nos.1 and 2. He further admits that
Anasuyamma was not bed ridden prior to her death and he further admits that
on the date of execution of the Will itself, it was registered.
19. P.W.2 is the 3rd attestor to Ex.A-1 disputed Will. He stated in his
evidence in chief examination itself that Anasuyamma during her lifetime
executed a Will in favour of the plaintiff and the plaintiff and his wife were
looking after her and at that time Anasuyamma called him and Cherukuri
Radha Krishna Murthy and they come over to the Registrar Office at Guntur.
He further deposed that Anasuyamma during her lifetime executed a Will in
favour of the plaintiff and as the plaintiff and his wife used to look after her,
that was about eleven (11) years ago. He further stated that at that time
Anasuyamma called him and Cherukuri Radha Krishna Murthy and they also
came to Guntur and also to the Registrar Office at Guntur, and Anasuyamma
executed a Will in favour of the plaintiff in his presence, Cherukuri Radha
Krishna Murthy and one K.Sambaiah. He further stated that the contents of
the Will were read over to Anasuyamma and Anasuyamma admitted the
contents of the Will. He further deposed that in the presence of himself,
Cherukuri Radha Krishna Murthy and K.Sambaiah, the said Anasuyamma
signed in the said Will. Whereas, in the cross-examination, he admits that he
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cannot read and write and Ex.A-1 Will was drafted and executed at Registrar
Office at Guntur, and he do not know the name of the person, who scribed the
Ex.A-1 Will. P.W.2 Ginjupalli Ramaiah further admitted in his evidence in
cross-examination that Cherukuri Radha Krishna Murthy, himself, K.Sambaiah
and Anasuyamma were present at the time of drafting Ex.A-1 Will. As seen
from Ex.A-1 Will, the said K.Ramaiah is not an attestor to the said Will. He
further admitted that on that day, Subbayamma, who is the wife of plaintiff,
brought Anasuyamma to a doctor at Guntur. He further admits that
Anasuyamma owns Ac.1.15 cents, which also belongs to her husband. He
admits that the distance in between Item Nos.7, 8 and 9 is one for long and
the said three (03) extents are different plots, the same is pleaded by the
appellants in the written statement. He further stated in his evidence in cross-
examination that after his signature, the other attestors attested Ex.A-1 Will
and the scribe signed his name in Ex.A-1 Will before the Sub-Registrar and
the execution and registration of Ex.A-1 Will was taken place on the same
day.
20. P.W.3 is the another attestor by name Sambasiva Rao, he stated in his
evidence that Anasuyamma executed Ex.A-1 Will in the year 1990 at the
Registrar Office, at Guntur and at that time, at the request of Anasuyamma, he
signed as one of the attestors in the Will along with Cherukuri Radha Krishna
Murthy and Ginjupalli Ramaiah and they signed as attestors in the said Will.
He further deposed that, at the first instance the Will was drafted and
thereafter got typed and thereafter, Ex.A-1 Will got registered and at the
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instance of Anasuyamma admitted that Ex.A-1 Will was drafter to her dictation
and after Ex.A-1 Will, Anasuyamma admitted that the contents of Ex.A-1 Will
are correct and by the date of Ex.A-1 Will, Anasuyamma was having good
health. In cross-examination, P.W.3 admits that Anasuyamma is a distant
relative to him and on the date of Ex.A-1, Anasuyamma came over to Guntur
for the purpose of executing the Will and in front of the Sub-Registrar, he
signed as an attestor in Ex.A-1, so also at the time of registration of Ex.A-1, he
signed as an attestor before the Sub-Registrar in Ex.A-1 Will on the same day.
He further admits that on the same day of the registration of Ex.A-1, Ex.A-1
Will is prepared, execution and registration of Will was happened on the same
day. He further admits in his evidence in cross-examination that after
completion of the execution of Ex.A-1 Will and before registration of
Ex.A-1 Will, the plaintiff came over to the Registrar Office and he do not know
whether Anasuyamma is suffering with Diabetes and Blood Pressure. He
further admits that after registration of Ex.A-1, the plaintiff himself took
Anasuyamma to her village. He further admits that he do not know whether
Anasuyamma after coming to know about the plaintiff obtained Ex.A-1 Will
deceitfully, executed another Will on 10.08.1997, bequeathing her properties
in favour of the defendant Nos.1 and 2 and the 1st attestor under Ex.A-1 is a
resident of Prattipadu Village.
21. The major discrepancies in the evidences of P.W.2 and P.W.3, who are
the attestors to the alleged Will are as follows:
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1. As per the evidence of P.W.2, himself and the 1st attestor were
called by Anasuyamma and they came over to the Registrar Office
at Guntur. Whereas, in cross-examination he admits that the wife
of the plaintiff brought Anasuyamma to a doctor at Guntur and on
that day, the doctor was not present in the hospital and asked him
to take her to the Registrar Office. Whereas, he stated in his
evidence in chief examination itself that on that day he came over
to Guntur by bus and got down by bus and from there he went to
the Registrar Office. As per the evidence of P.W.3, on the date of
Ex.A-1, Anasuyamma came over to Guntur for the purpose of
executing the Will.
2. P.W.2, Ginjupalli Ramaiah deposed in his evidence in cross-
examination that at the time of execution of Ex.A-1 Will, himself,
Cherukuri Radha Krishna Murthy and K.Ramaiah were present. As
per Ex.A-1, K.Ramaiah is neither attestor nor identifying witness to
the Will and moreover, he stated that after his signature, the other
attestors attested in Ex.A-1. As seen from the deposition of P.W.2
and Ex.A-1, he is not a signatory and he affixed his thumb mark in
Ex.A-1 as well as in his deposition as P.W.2. Another major
discrepancy in the evidence of P.W.2 is after his signature and
other attestors attested Ex.A-1, the scribe signed his name in
Ex.A-1 before the Registrar, in the Registrar Office. As could be
seen from Ex.A-1, he is not an identifying witness and he is an
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attestor to Ex.A-1, which was prepared on the preceding date of
registration, he is not a signatory and he is a thumb impression
holder. Whereas, P.W.3 stated that Cherukuri Radha Krishna
Murthy signed as 1st attestor and thereafter, he signed as 2nd and
thereafter, the 3rd attestor affixed his thumb mark in the Will.
Whereas, P.W.2, who is the another attestor stated in his evidence
that after his signature, the other attestors attested Ex.A-1 and the
scribe signed his name in Ex.A-1, before the Sub-Registrar. As
stated supra, P.W.2 is not a signatory and he affixed his thumb
mark on the document as thumb impression holder.
3. P.W.2 stated in his evidence that he came over to Guntur from
Prattipadu, on the date of execution of the Will and execution of
the Will, registration of the Will Ex.A-1 was taken place on the
same day, after they all return back to Prattipadu. P.W.3 also
stated in his evidence that he came over to Guntur from Nallapadu
and the preparation of the Will, execution of the Will and
registration of the Will have taken place on one day and he cannot
say the contents of Ex.A-1 Will. The plaintiff also asserted in his
evidence that execution of Ex.A-1 Will and registration of the Will
was taken place on the same day. As seen from Ex.A-1, Ex.A-1 was
prepared and executed on 28.03.1990, and it was registered before
the Sub-Registrar on the next day i.e. on 29.03.1990, in between
11.00 a.m. and 12.00 noon. P.W.3 is the attestor to the Will and also
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an identifying witness before the Sub-Registrar in the Registrar
Office. It is not at all the case of P.W.3 that on 28.03.1990 and on
29.03.1990, i.e. on both days he came over to Guntur, for the
purpose of attestation in the execution of Will and also as
identifying witness in the Will. The propounder of the Will/plaintiff
also asserted in his evidence that the execution of the Will and the
registration of the Will has taken place on the same day. It is also
one of the strong suspicious circumstance to doubt Ex.A-1 WIll
4. As per the evidence of P.W.3, after completion of execution of
Ex.A-1 Will and before registration of Ex.A-1 Will, the plaintiff came
over to the Registrar Office and after the registration of Ex.A-1, the
plaintiff himself took Anasuyamma to her village. There is no
whisper in the evidence of the plaintiff about his presence on the
date of execution and registration of the Will at Guntur, and he
suppressed the same in his evidence. As per the evidence of P.W.1,
he has no personal knowledge about the execution and
registration of the Will by the testatrix, after four or five days of the
execution of Ex.A-1 Will, Anasuyamma handed over the said Will
to him.
5. The 1st attestor to Ex.A-1 Wil and the 1st identifying witness to
Ex.A-1 Will as D.W.5 deposed in his evidence that the plaintiff took
him to the Registrar Office and obtained his signature in Ex.A-1 in
the Registrar Office and the contents of Ex.A-1 was not read over
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at the time of his signing in it and also he did not ask to read over
the contents of Ex.A-1.
6. Another important suspicious circumstance to doubt Ex.A-1 Will is
that the testatrix is examined as D.W.1 in another suit proceedings
in O.S.No.54 of 1993, in the year 1995, wherein, she did not stated
about the execution of Ex.A-1 Will in the year 1990, in favour of the
plaintiff herein and the testatrix, the plaintiff and the wife of the
plaintiff are the parties to the said suit in O.S.No.54 of 1993.
The aforesaid major discrepancies in the evidence of the attestors to
Ex.A-1 and also other suspicious circumstances as narrated supra cannot
be simply thrown out and Ex.A-1 Will is surrounded by several suspicious
circumstances. It is the duty of the propounder of the Will to remove all
legitimate suspicious circumstances before the document can be accepted.
But the propounder of the Will/plaintiff failed to remove the same.
22. The material on record reveals that the date of the alleged Will is
28.03.1990, and the testatrix was examined as D.W.1 in another suit in
O.S.No.54 of 1993, on 22.10.1995, subsequent to the execution of Ex.A-1
Will, wherein, the testatrix of the Will, the plaintiff and his wife are the
defendant Nos.1 to 3 in the said suit and the defendant No.3 herein is the
plaintiff in the said suit. In the said suit on 22.10.1995, the testatrix
Anasuyamma had not deposed that she executed a Will on 28.03.1990 in
favour of the plaintiff herein. As stated supra, the date of giving evidence by
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the testatrix is on 22.10.1995 and subsequently, she was alive and she died in
the year 1998.
23. The testatrix as D.W.3 did not depose in the suit proceedings in
O.S.No.54 of 1998, as narrated supra that she has already executed a
registered Will under Ex.A-1 in favour of the plaintiff herein. The execution of
Ex.A-1 Will dated 28.03.1990 was not spoken by testatrix on 22.10.1995, in
O.S.No.54 of 1993, wherein the plaintiff and his wife are the co-defendants to
Anasuyamma, which is also one of the strong suspicious circumstance to
doubt Ex.A-1 Will. If the testatrix really executed Ex.A-1 Will, she would have
certainly spoken about the execution of Ex.A-1 in O.S.No.54 of 1993, but, she
had not stated about the execution of Ex.A-1 Will in the said evidence and
there is no need for the testatrix to depose that she executed a registered
General Power of Attorney in favour of the plaintiff in the year 1992, to look
after the properties. The plaintiff also stated that in the year 1992,
Anasuyamma executed a General Power of Attorney in his favour to look after
her properties. The testatrix also stated in her evidence in the said suit
proceedings in O.S.No.54 of 1993 that she has given authority to the plaintiff
herein to look after her properties.
24. The General Power of Attorney ceases to exist after the death of the
principal and the agent has no right over the estate of the deceased.
Therefore, it is evident that the testatrix herself did not speak about the
execution of Ex.A-1registered Will in her deposition in another suit in
O.S.No.54 of 1993, wherein the plaintiff herein and his wife are the
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co-defendants to Anasuyamma in O.S.No.54 of 1993. The trial Court clubbed
both A.S.No.63 of 1996 and O.S.No.03 of 1998 and a common judgment was
pronounced and in the appeal proceedings the plaintiff herein is the
respondent No.2, his wife is the respondent No.3 and Anasuyamma was the
respondent No.1. The said appeal filed by the defendant No.3 herien is
allowed by the First Appellate Court, against which no second appeal has
been preferred by the plaintiff herein.
25. Learned counsel for the plaintiff placed a case law in Naresh Charan
Das Gupta Vs. Paresh Charan Das Gupta1, wherein the Apex Court held as
follows:
“The cumulative effect of the evidence is clearly to establish that the will
represents the free volition of the testator, and that it is not the result of undue
influence by the first respondent or his relations. It should be mentioned that
Indira herself sought to enforce her rights under the will shortly after the death
of the testator, and that the appellant also obtained payment of legacy under
the will for a period of 15 months. No ground has been established for our
differing from the High Court in its appreciation of the evidence, and we agree
with its conclusion that the will is not open to question on the ground of undue
influence”.
26. Learned counsel for the plaintiff placed a case law in Alok Kumar Aich
Vs. Asoke Kumar Aich 2, wherein the High Court of Calcutta held as follows:
“The mode of proving a will does not ordinarily differ from that of proving any
other document except as to the special requirements of attestation
prescribed in case of a will by Section 68 of the Succession Act. It is also
settled law that the onus of proving the will is on the propounder and in the
absence of suspicious circumstances surrounding the execution of the will,
proof of testamentary capacity and the signature of the testator as required bv
law is sufficient to discharge the onus. The propounder is called upon to show
by satisfactory evidence that the will was signed by the testator and the
testator was in sound land disposing state of mind that he understood the1
(1954) 2 SCC 800
2
AIR 1982 CALCUTTA 599
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nature and effect of the dispositions and put his signature to the document of
his own will”.
27. Learned counsel for the plaintiff placed a case law in H.H.Maharaja
Bhanu Prakash Singh Vs. Tika Yogendra Chandra 3 , wherein the Apex
Court held as follows:
“7. …..With regard to the minor discrepancies these were but natural
having regard to the fact that evidence was recorded some eight years after
the execution of the will. Taking into account totality of the circumstances, the
conscience of the court is more than satisfied about the genuineness of the
will and the due execution, attestation and proof thereof”.
28. Learned counsel for the plaintiff placed a case law in Bhagat Ram and
Another Vs. Suresh and Others 4, wherein the Apex Court held as follows:
“Prima facie, the registering officer puts his signature on the document in
discharging his statutory duty under Section 59 of the Registration Act, 1908
and not for the purpose of attesting it or certifying that he has received from
the executants a personal acknowledgment of his signature. The Registrar of
Deeds who has registered a document in discharge of his statutory duty,
therefore does not become an attesting witness to the deed solely on account
of his having discharged the statutory duties relating to the registration of a
document. Registration of any Will, and the endorsements made by the
Registrar of Deeds in discharge of his statutory duties, do not elevate him to
the status of a “statutory attesting witness”.
In the case at hand, as narrated supra, there are several major
discrepancies in the evidence of P.W.1 To P.W.3, those were not natural.
Moreover, on account of registration of Will, a presumption as to correctness
or regularity of attestation cannot be drawn. The evidence of attesting
witnesses in a registered Will would be liable to be appreciated and evaluated
like the testimony of any other attesting witness. Moreover, the 1st attestor in
Ex.A-1 is examined as D.W.5 by the defendants in the present suit
3
1989 SUPP (1) Supreme Court Cases 16
4
(2003) 12 Supreme Court Cases 35
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proceedings, wherein he narrated in his evidence that the contents of Ex.A-1
were not read over at the time of he signing in it and he also not asked to read
over the contents of Ex.A-1 and the plaintiff took him to the Registrar Office
and obtained his signature in Ex.A-1 in the Registrar Office. Therefore, the
facts and circumstances in the aforesaid case laws are not applicable to the
present case.
29. Learned counsel for the plaintiff placed a case law in Pentakota
Satyanarayana and Others Vs. Pentakota Seetharatnam and Others 5 ,
wherein the Apex Court held as follows:
“The circumstances of depriving the natural heirs should not raise any
suspicion because the whole idea behind the execution of the will is to be
interfered in the normal line of succession and so natural heirs would be
debarred in every case of the Will. It may be that in some cases they are fully
debarred and some cases partly. This is the view taken by this Court in Uma
Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321″.
30. Learned counsel for the plaintiff placed a case law in Gunjari Das Vs.
Subal Chandra Das and others6.
Learned counsel for the plaintiff placed another case law in Leela Rajagopal
and others Vs. Kamala Menon Cocharan and others7.
Learned counsel for the plaintiff placed a case law in Dhanpat Vs.
Sheo Ram (Deceased) Through Legal Representatives and others8.
5
(2005) 8 Supreme Court Cases 67
6
2009 SCC Online Cal 1289
7
(2014) 15 SCC 570
8
(2020) 16 Supreme Court Cases 209
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Learned counsel for the plaintiff placed a case law in V.Prabhakara Vs.
Basavaraj K. (Dead) By Legal Representatives and Another9.
In the case at hand, as narrated supra, there are several major
discrepancies in the evidence of P.W.1 to P.W.3 about Ex.A-1 alleged Will,
those discrepancies cannot be simply ruled out. Even as per the own
evidence of the plaintiff, he is the son of the junior paternal aunt of the
testatrix, therefore, he does not come under the purview of natural heir under
the Succession Act, moreover, the defendant Nos.1 and 2 comes under the
purview of Class-II heirs under the Succession Act. It is relevant to mention
that the testatrix died issueless without Class-I heirs and her husband
predeceased her.
31. In a case of Gurdial Singh (Dead) through Lr. Vs. Jagir Kaur (Dead)
and Another10, wherein the Apex Court has laid down certain parameters to
ascertain suspicious circumstances vitiating a Will, those are as follows:
“14. ………
“8. Needless to say that any and every circumstance is not a
“suspicious” circumstance. A circumstance would be
“suspicious” when it is not normal or is not normally expected
in a normal situation or is not expected of a normal person.”
The Court quoted the Privy Council’s elucidation in Hames v.
Hinkson, of suspicious circumstances as follows:
“17……………where a Will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate persistence in
disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to the truth.”9
(2022) 1 Supreme Court Cases 115
10
(1954) 2 SCC 800
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It was again reiterated in PPK Gopalan Nambier vs. PPK Balakrishnan
Nambiar & Ors., that suspected features should not be mere fantasies of a
doubting mind.
“5……………It is trite that it is the duty of the propounder of the
will to prove the will and to remove all the suspected features.
But there must be real, germane and valid suspicious features
and not fantasy of the doubting mind.”
32. In a case of Shivakumar and Others vs. Sharanabasappa and
Others11, wherein the Full Bench of the Apex Court held as follows:
“The onus of proving the Will is on the propounder and in the absence of
suspicious circumstances surrounding the execution of the will, proof of
testamentary capacity and the signature of the testator as required by law is
sufficient to discharge the onus. Where however there are suspicious
circumstances, the onus is on the propounder to explain them to the
satisfaction of the court before the court accepts the Will as genuine”.
“If the propounder succeeds in removing the suspicious circumstances, the
court has to give effect to the will, even if the will might be unnatural in the
sense that it has cut off wholly or in part near relations.”
In the aforesaid case law, the Full Bench of the Apex Court has laid
down certain principles governing the adjudicatory process concerning proof
of a Will, those are as follows:
“12. ……the relevant principles governing the adjudicatory process
concerning proof of a Will could be broadly summarised as follows:
12.1. Ordinarily, a Will has to be proved like any other document; the test to
be applied being the usual test of the satisfaction of the prudent mind. Alike
the principles governing the proof of other documents, in the case of Will too,
the proof with mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a Will is required to be
attested, it cannot be used as evidence until at least one attesting witness
has been called for the purpose of proving its execution, if there be an
attesting witness alive and capable of giving evidence.
12.3. The unique feature of a Will is that it speaks from the death of the
testator and, therefore, the maker thereof is not available for deposing about
the circumstances in which the same was executed. This introduces an
element of solemnity in the decision of the question as to whether the
document propounded is the last Will of the testator. The initial onus,
naturally, lies on the propounder but the same can be taken to have been11
(2021) 11 Supreme Court Cases 277
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primarily discharged on proof of the essential facts which go into the making
of a Will.
12.4. The case in which the execution of the Will is surrounded by suspicious
circumstances stands on a different footing. The presence of suspicious
circumstances makes the onus heavier on the propounder and, therefore, in
cases where the circumstances attendant upon the execution of the
document give rise to suspicion, the propounder must remove all legitimate
suspicions before the document can be accepted as the last Will of the
testator.
12.5. If a person challenging the Will alleges fabrication or alleges fraud,
undue influence, coercion et cetera 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.‟
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 et cetera 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? 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.”
In the case at hand, the date of alleged Ex.A-1 registered Will is
28.03.1990, and the testatrix has given evidence in another suit in O.S.No.54
of 1993, she herself as a party to the said suit was examined as a witness on
22.10.1995, wherein, the plaintiff herein and his wife are the co-defendants to
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Anasuyamma in the said suit. But, she did not stated about the execution of
Ex.A-1 Will in favour of the plaintiff herein in the said suit proceedings and she
herself did not speak about the execution of Ex.A-1. The testatrix as D.W.1
deposed on 22.10.1995 in O.S.No.54 of 1993 (Ex.A-17) that she went to the
Registrar Office at one time for the purpose of executing the power of attorney
in favour of the defendant No.2 in the suit i.e. the plaintiff in the present suit.
The plaintiff also admits that after execution of Ex.A-1 Will, Anasuyamma
executed a power of attorney in his favour. When she herself was examined
as witness as D.W.1 on 22.10.1995 in O.S.No.54 of 1993, had she really
executed such a Will dated 28.03.1990, there is no need to depose that she
went to the Registrar Office at one time only for execution of power of attorney
in favour of the plaintiff herein. It is also one of the strong suspicious
circumstances to doubt Ex.A-1 Will. It is not at all the case of the plaintiff that
subsequent to giving evidence by the testatrix, she executed Ex.A-1 Will.
Moreover, she narrated in her evidence about the execution General Power of
Attorney in favour of the plaintiff in the year 1992. Therefore, nothing
prevented her to depose about the execution of Ex.A-1 Will in the year 1990 in
the said suit proceedings, who had given the evidence on 22.10.1995, before
the Court in O.S.No.54 of 1993.
33. For the aforesaid reasons, I am of the considered view that there are
several suspicious circumstances surrounding the execution of Ex.A-1 and
those suspicious circumstances are not removed by the propounder of the
Will. As narrated supra, it is the duty of the propounder/plaintiff to remove all
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the legitimate suspicious circumstances before Ex.A-1 can be accepted, but,
the propounder failed to discharge his duty and also failed to remove all the
aforesaid suspicious circumstances. Therefore, this Court is of the considered
view that Ex.A-1 Will is not proved in accordance with law.
Accordingly, the point No.1 is answered.
34. Point No.2:-
Whether Ex.B-4 Will dated 10.08.1997, is proved in accordance
with law?
The defendant Nos.1 and 2 are relying on Ex.B-4 Will dated
10.08.1997, said to have been executed by the testatrix in favour of the
plaintiff. The defendant No.2 is examined as D.W.1 and the defendant No.1 is
examined as D.W.2 in the present case and both D.W.1 and D.W.2 are the
propounders of Ex.B-4 Will dated 10.08.1997, which is a unregistered Will.
Both the propounders of Will i.e. the defendant Nos.1 and 2 narrated their
presence at Guntur on the date of alleged Ex.B-4 Will on 10.08.1997. They
have stated in their evidence in chief-examination itself that they are aware of
Ex.B-4 Will and both of them were present at the time of Ex.B-4. They have
not at all suppressed the said fact in their evidence. They deposed that
Anasuyamma informed them that she intends to execute a Will and asked
them to come over to Guntur, and at the house of D.Venkateswara Rao, Ex.B-
4 unregistered Will is executed.
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35. The Ex.B-4 Will is seriously denied by the plaintiff herein. It is the
contention of the plaintiff herein that the said Will is a fabricated document,
which is a unregistered Will. Therefore, the burden casts upon the
propounders of the Will/defendant Nos.1 and 2 to prove Ex.B-4 Will in
accordance with law. To substantiate the case of the defendant Nos.1 and 2
all the three attestors were examined as D.W.3 to D.W.5. D.W.3 to D.W.5
deposed in their evidence about the execution of Ex.B-4 Will on 10.08.1997, in
their presence and in their presence itself the testatrix has given instructions
to the scribe to prepare the said Ex.B-4, and the contents of Ex.B-4 were read
over to the testatrix and the testatrix admitted the said contents. They have
stated that in their presence the testatrix signed on Ex.B-4 Will. In cross-
examination the evidence of D.W.3 to D.W.5, is not at all shattered on the
material aspects of the case. D.W.5, who is a crucial witness, he narrated in
his evidence itself in chief examination that the plaintiff took him to the
Registrar Office and obtained a signature in Ex.A-1 (Will relied by the plaintiff)
and the contents of Ex.A-1 were not read over at the time of his signing in it
and he did not ask to read over the contents of Ex.A-1. Though he was cross
examined by the learned counsel for the plaintiff, and his evidence in cross
examination is not shattered on the material aspects of the case. it is not the
case of the plaintiff that he is having enmity with the attestors D.W.3 to D.W.5
and that they deposed falsehood against him. It is not the specific case of the
plaintiff that Anasuyamma was having disputes with the propounders of
Ex.B-4 Will/defendant Nos.1 and 2. In his evidence in cross-examination, the
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plaintiff admits that he does not know whether there are any differences of
opinion between Anasuyamma and the defendant Nos.1 and 2.
36. Learned counsel for the plaintiff contended that in the earlier suit
proceedings in O.S.No.54 of 1993, the testatrix deposed in her evidence on
22.10.1995 that she used to stay along with G.Subba Rao and his wife i.e. the
plaintiff herein and his wife and they used to look after her welfare and her
needs, therefore, execution of Ex.B-4 Will on 10.08.1997 is highly doubtful.
There was a gap of about three (03) years in between giving of evidence by
the testatrix in O.S.No.54 of 1993 and the death of the testatrix. In Ex.B-4 Will,
the testatrix narrated that after obtaining her signatures on the papers
fraudulently by the plaintiff herein, he created a registered Will and
subsequently, the plaintiff herein and his wife are not attending her welfare
and also not looking after her needs. In the case at hand, the defendants have
not approached the Civil Court for seeking relief of declaration of title.
Admittedly, the defendant Nos.1 and 2 are the Class-II heirs and the testatrix
died issueless without having Class-I heirs and her husband predeceased her
and the plaintiff herein does not come under the purview of the natural
succession under the Succession Act. The plaintiff asserted in his evidence
that he is the son of the junior paternal aunt of Anasuyamma. Moreover, the
participation of the propounder of the Will in the execution of Ex.B-4 Will is not
suppressed by the propounders/defendant Nos.1 and 2 in their evidence. The
trial Court disallowed Ex.B-4 Will on the main ground that the spacing in
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between the lines in the said Will is not uniform. Therefore, the said finding of
the trial Court is nothing but an erroneous finding.
37. The trial Court while deciding Ex.B-4 Will not even discussed about the
evidence of the attestors of Ex.B-4 Will/ D.W.3 to D.W.5 in a proper manner.
The trial Court mainly came to a wrong conclusion and disbelieved Ex.B-4 Will
on the ground that the spacing in between the lines in the said Will is not
uniform. Therefore, the finding of the trial Court is nothing but an erroneous
finding. Here the plaintiff relied on Ex.A-1 Will dated 28.03.1990 and the
defendant Nos.1 and 2 relied on Ex.B-4 Will dated 10.08.1997, and the
testatrix died on 24.09.1997. It is not the case of the plaintiff that the testatrix
was bed ridden at the time of death and even as per the evidence of the
plaintiff, the testatrix was not bed ridden prior to her death. Ex.B-4 is the last
testament of the testatrix. Moreover, after execution of Ex.B-4 Will, the
testatrix was alive for a period of more than one (01) month and the plaintiff
herein is not the natural heir under the Succession Act and the defendant
Nos.1 and 2 are the Class-II heirs under the Succession Act.
38. The law is well settled that “a Will need not be registered, mere
registration of the Will not by itself is sufficient to remove the suspicion. Even
though the alleged Will is a registered Will, no importance will be given to the
registered Will and it cannot be treated as genuine Will unless it is proved in
accordance with law”. As notice supra, there are several suspicious
circumstances surrounding Ex.A-1 Will and the same are not removed by the
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propounder of the Will/ plaintiff. Moreover, the defendant Nos.1 and 2 proved
Ex.B-4 Will, which is the last testament of the testatrix in accordance with law.
Accordingly, the point No.2 is answered.
39. Point Nos.3 and 4:-
Whether the plaintiff in O.S.No.03 of 1998, on the file of III
Additional District Judge, Guntur, is entitled to the relief of declaration of
title and recovery of possession over the plaint schedule property?
Whether the trial Court is justified in partly decreeing the suit in
O.S.No.03 of 1998?
The plaintiff in the suit is seeking relief of declaration of title and
claiming possession over the plaint schedule property. The case of the plaintiff
is that on 13.01.1998, the defendant Nos.1 and 2 illegally occupied the plaint
schedule property by trespassing into Item No.1 of the schedule house,
wherein the plaintiff has been residing with his wife and also trespassed into
the other properties that are agricultural lands. It is the case of the defendant
Nos.1 and 2 that they came into possession of the plaint schedule property
subsequent to the death of the testatrix by virtue of Ex.B-4 Will and they are
the Class-II heirs under the Succession Act, and Ginjupalli Anasuyamma died
without Class-I heirs and her husband predeceased her. In the present case,
the title of the plaintiff is based on Ex.A-1 alleged registered Will dated
10.05.1990, as stated supra, the plaintiff failed to prove Ex.A-1 Will dated
28.03.1990, in accordance with law. Moreover, the plaintiff does not come
VGKR, J.
AS_299_2006
under the purview of natural succession and the defendant Nos.1 and 2 are
the Class-II heirs of Anasuyamma. Anasuyamma died issueless without
having Class-I heirs and her husband predeceased her. Moreover, the title of
the defendant Nos.1 and 2 is based on Ex.B-4 Will dated 10.08.1997, which is
the last testament of the testatrix. Ex.B-4 Will is proved by the propounders of
Ex.B-4 Will in accordance with law. Since the plaintiff failed to prove the Ex.A-
1 Will in accordance with law, he is not entitle to the relief of declaration of title
and recovery of possession in the plaint schedule property as ordered by the
trial Court in its judgment.
40. In view of my aforesaid findings, I am of the considered view that the
learned trial Judge failed to appreciate the evidence on record in a proper
manner and decreed the suit in O.S.No.03 of 1998 partly. Therefore, the said
decree and judgment dated 27.03.2006 passed by the trial Court in
O.S.No.03 of 1998 is liable to be set aside.
41. In the result, the appeal is allowed. Consequently the suit in O.S.No.03 of
1998, on the file of the learned III Additional District Judge, Guntur, is
dismissed.
Pending applications, if any, shall stand closed. Each party do bear
their own costs in the appeal.
__________________________
V. GOPALA KRISHNA RAO, J.
Date: 10.03.2026
SRT
