Andhra Pradesh High Court – Amravati
Muppavarapu Chowdary And Leela Krishna … vs Ibrahim Uddin And on 6 March, 2026
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
***
WRIT PETITION NOS:3325 & 3807 of 2020; 15383, 15403 of 2021, 13966 &
16510 of 2023; AS Nos.645 of 2013 & 707 of 2014 & C.C No.5225 of 2023
WP No.3325 of 2020
Between:
1. MUPPAVARAPU CHOWDARY AND LEELA KRISHNA PRASAD
TRUST, REP BY ITS TRUSTEE KUDARAVALLI RADHA KRISHNA
MURTHY S/O LATE PURUSHSOTHAM, AGED 89 YEARS, R/O 1079
BELVEDERE LN. SAN JOSE, CA 95129, U.S.A PRESENTLY R/O A-6,
SANTHI APARTMENTS, P AND T COLONY, NEAR SAIBABA
TEMPLE, VIJAYAWADA, KRISHNA DISTRICT.
2. MUPPAVARARU DEVANADH CHOWDARY, S/O LATE SUBBA RAO,
AGED 34 YEARS, BUSINESS, D.NO. 10-89, ASHOKNAGAR,
KANURU, VIJAYAWADA, KRISHNA DISTRICT. DISMISSED AS
WITHDRAWN INSOFAR CONCERNED VIDE COURT ORDER DT.
16.08.2022.
…PETITIONER(S)
AND
$ 1. THE MANDAL LEGAL SERVICES AUTHORITY, REP BY ITS
CHAIRMAN, LOK ADALAT, ELURU, WEST GODAVARI DIST.
2. MUPPAVARAPU HEMANTH KUMAR, S/O LATE CHOWDARY,
HINDU, AGED ABOUT 62 YEARS, D.NO. 11-140, ASHOKNAGAR,
M.G.ROAD, VIJAYAWADA, KRISHNA DIST.
3. MANCHIKALAPUDI PARVATHI, WIO LATE SAMBASIVA RAO, AGED
ABOUT 71 YEARS, NEAR RTC COLONY, PATAMATA, VIJAYAWADA,
KRISHNA DISTRICT.
4. MUPPAVARAPU PADMAJA, W/O LATE LEELA RAMA KRISHNA
PRASAD, AGED ABOUT 50 YEARS, R/O 110-27-64, AVE, FOREST
HILLS NY 11375, NEWYORK, U.S.A, REP BY HER GPA HOLDER
SMT VELLANKI JAYA W/O RACHERLA RAJENDRA NAIDU, R/O
D.NO. 29-14-56, PRAKASAM ROAD, SURYARAOPET, VIJAYAWADA,
KRISHNA DISTRICT.
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W.P.No.3325 of 2020 & batch
5. THE DISTRICT REGISTRAR, VIJAYAWADA, KRISHNA DISTRICT.
6. THE SUBREGISTRAR, PATAMATA, KALANAGAR, VIJAYAWADA,
KRISHNA DISTRICT.
…RESPONDENT(S):
Date of Judgment pronounced on : 06.03.2026
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
3
RRR,J & TCDS,J
W.P.No.3325 of 2020 & batch
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
* HON’BLE SRI JUSTICE T.C.D. SEKHAR
+ WRIT PETITION NOS:3325 & 3807 of 2020; 15383, 15403 of 2021, 13966
& 16510 of 2023; AS Nos.645 of 2013 & 707 of 2014 & C.C No.5225 of
2023
% Dated:06.03.2026
1. MUPPAVARAPU CHOWDARY AND LEELA KRISHNA PRASAD
TRUST, REP BY ITS TRUSTEE KUDARAVALLI RADHA KRISHNA
MURTHY S/O LATE PURUSHSOTHAM, AGED 89 YEARS, R/O 1079
BELVEDERE LN. SAN JOSE, CA 95129, U.S.A PRESENTLY R/O A-6,
SANTHI APARTMENTS, P AND T COLONY, NEAR SAIBABA
TEMPLE, VIJAYAWADA, KRISHNA DISTRICT.
2. MUPPAVARARU DEVANADH CHOWDARY, S/O LATE SUBBA RAO,
AGED 34 YEARS, BUSINESS, D.NO. 10-89, ASHOKNAGAR,
KANURU, VIJAYAWADA, KRISHNA DISTRICT. DISMISSED AS
WITHDRAWN INSOFAR CONCERNED VIDE COURT ORDER DT.
16.08.2022.
…PETITIONER(S)
AND
$ 1. THE MANDAL LEGAL SERVICES AUTHORITY, REP BY ITS
CHAIRMAN, LOK ADALAT, ELURU, WEST GODAVARI DIST.
2. MUPPAVARAPU HEMANTH KUMAR, S/O LATE CHOWDARY,
HINDU, AGED ABOUT 62 YEARS, D.NO. 11-140, ASHOKNAGAR,
M.G.ROAD, VIJAYAWADA, KRISHNA DIST.
3. MANCHIKALAPUDI PARVATHI, WIO LATE SAMBASIVA RAO, AGED
ABOUT 71 YEARS, NEAR RTC COLONY, PATAMATA, VIJAYAWADA,
KRISHNA DISTRICT.
4. MUPPAVARAPU PADMAJA, W/O LATE LEELA RAMA KRISHNA
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W.P.No.3325 of 2020 & batch
PRASAD, AGED ABOUT 50 YEARS, R/O 110-27-64, AVE, FOREST
HILLS NY 11375, NEWYORK, U.S.A, REP BY HER GPA HOLDER
SMT VELLANKI JAYA W/O RACHERLA RAJENDRA NAIDU, R/O
D.NO. 29-14-56, PRAKASAM ROAD, SURYARAOPET, VIJAYAWADA,
KRISHNA DISTRICT.
5. THE DISTRICT REGISTRAR, VIJAYAWADA, KRISHNA DISTRICT.
6. THE SUBREGISTRAR, PATAMATA, KALANAGAR, VIJAYAWADA,
KRISHNA DISTRICT.
…RESPONDENT(S):
Sri M.R.S. Srinivas learned counsel, appearing for the plaintiff, Sri Y.N.
Vivekananda learned counsel appearing for defendants 2 and 4 to 10, who
are the appellants in A.S.No.645 of 2013 and Sri O. Manohar Reddy, the
learned Senior Counsel appearing for the appellant in A.S.No.707 of 2014.
Sri S. Lakshminarayana Reddy (S.C for GVMC), Narayana Raju Uuddaraju
and Krishna C.V Grnadhi, learned counsel appearing for the respondents.
<GIST : >HEAD NOTE: ? Cases referred: 1 (2012) 8 SCC 148 (paras 12 and 21) 2 (1972) 4 SCC 562 (para 15) 3 (2009)1 SCC 354 (paras 18 to 24, 27 to 34) 4 (2012) 4 ALD 732 5 (2020) 12 SCC 480 6 2016 SCC Online Karnataka 3997 7 AIR 1938 Calcutta 507 8 (2020) 17 SCC 284 9 AIR 1999 SC 1441: (1999) 3 SCC 573 10 (1999) 3 SCC 573 (para 17) 11(2025) SCC online SC page 868 (paras 19 and 20) 12(2023) 13 SCC page 1 (paras 64 & 65) 13(AIR 1959 SC 443 (paras 18 to 22) 5 RRR,J & TCDS,J W.P.No.3325 of 2020 & batch 14(1990) 1 SCC 266 (paras 22 and 23) 1 5(2009) 3 SCC 687 (paras 14 to 23) 16 (2025) 4 SCC 289 (paras 16 to 33) 17 (2023) 9 SCC 734 (paras 9 to 14) 18
1958 SCC OnLine SC 31 : 1959 Supp (1) SCR 426 : AIR 1959 SC 443
19
(2009) 3 SCC 687 (paras 14 to 23)
20
(2025) 4 SCC 289 (paras 16 to 33)
21
(2023) 9 SCC 734 (paras 9 to 14)
22
(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934 : 2008 SCC OnLine SC 1867 at page 699
23
(2021) 11 SCC 277 : 2020 SCC OnLine SC 385 at page 309
24
2012 SCC OnLine AP 778 : (2012) 4 ALD 732 at page 742
25 AIR 1999 SC 1441: (1999) 3 SCC 573
26
(1997) 7 SCC 110 : 1997 SCC OnLine SC 122 at page 121
27. 2016 SCC ONLINE KAR 3997 in Re: Parameshwaran Subramani
28
(2018) 13 SCC 480 (paras 22 to 24 and 33)
29
(2008) 2 SCC 660 (para 12)
30
(1994) 1 SCC page 1 (paras 5 and 6)
31
(2010) 8 SCC 383 (paras 28 to 36)
32
(2021) 13 SCC 587 (paras 19 to 21)
33
(2012) 1 SCC 656 (para 17)
34
(2025) SCC Online SC 1879 (paras 25 and 26)
35
MANU/AP/1964/2024 (paras 22 and 23)
36
(2008) 2 SCC 660 : (2008) 1 SCC (Civ) 669 : (2008) 1 SCC (Cri) 524 : (2008) 1 SCC (L&S)
535 : 2008 SCC OnLine SC 137 at page 666
37
. (2018) 13 SCC 480 : (2018) 4 SCC (Civ) 243 : 2017 SCC OnLine SC 1053 at page 486
38. 2025 SCC Online SC 2737 (paras 14 & 15)
39
2024 (1) ALT 164 : 2024 SCC Online AP 5159
40
. AIR 1941 MAD 535 and 1975 SCC Online MP 38
41
1962 SCC OnLine SC 159 : (1963) 3 SCR 623 : AIR 1963 SC 309
42
1972 SCC OnLineGuj10 : AIR 1973 Guj 113 : (1972) 13 GLR 828 at page 114
43
(2022) 8 SCC 210 : (2022) 3 SCC (Cri) 354 : (2022) 4 SCC (Civ) 284 : 2022 SCC OnLine
SC 544 at page 235
44
AIR 1958 SC 886
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RRR,J & TCDS,J
W.P.No.3325 of 2020 & batchAPHC010055262020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3529]
(Special Original Jurisdiction)FRIDAY, THE SIXTH DAY OF MARCH
TWO THOUSAND AND TWENTY SIXPRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR
WRIT PETITION NOS:3325 & 3807 of 2020; 15383, 15403 of 2021, 13966 &
16510 of 2023; AS Nos.645 of 2013 & 707 of 2014 & C.C No.5225 of 2023WP No.3325 of 2020
Between:
1. MUPPAVARAPU CHOWDARY AND LEELA KRISHNA PRASAD
TRUST, REP BY ITS TRUSTEE KUDARAVALLI RADHA KRISHNA
MURTHY S/O LATE PURUSHSOTHAM, AGED 89 YEARS, R/O 1079
BELVEDERE LN. SAN JOSE, CA 95129, U.S.A PRESENTLY R/O A-6,
SANTHI APARTMENTS, P AND T COLONY, NEAR SAIBABA
TEMPLE, VIJAYAWADA, KRISHNA DISTRICT.
2. MUPPAVARARU DEVANADH CHOWDARY, S/O LATE SUBBA RAO,
AGED 34 YEARS, BUSINESS, D.NO. 10-89, ASHOKNAGAR,
KANURU, VIJAYAWADA, KRISHNA DISTRICT. DISMISSED AS
WITHDRAWN INSOFAR CONCERNED VIDE COURT ORDER DT.
16.08.2022.
…PETITIONER(S)
AND
1. THE MANDAL LEGAL SERVICES AUTHORITY, REP BY ITS
CHAIRMAN, LOK ADALAT, ELURU, WEST GODAVARI DIST.
2. MUPPAVARAPU HEMANTH KUMAR, S/O LATE CHOWDARY,
HINDU, AGED ABOUT 62 YEARS, D.NO. 11-140, ASHOKNAGAR,
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W.P.No.3325 of 2020 & batch
M.G.ROAD, VIJAYAWADA, KRISHNA DIST.
3. MANCHIKALAPUDI PARVATHI, WIO LATE SAMBASIVA RAO, AGED
ABOUT 71 YEARS, NEAR RTC COLONY, PATAMATA, VIJAYAWADA,
KRISHNA DISTRICT.
4. MUPPAVARAPU PADMAJA, W/O LATE LEELA RAMA KRISHNA
PRASAD, AGED ABOUT 50 YEARS, R/O 110-27-64, AVE, FOREST
HILLS NY 11375, NEWYORK, U.S.A, REP BY HER GPA HOLDER
SMT VELLANKI JAYA W/O RACHERLA RAJENDRA NAIDU, R/O
D.NO. 29-14-56, PRAKASAM ROAD, SURYARAOPET, VIJAYAWADA,
KRISHNA DISTRICT.
5. THE DISTRICT REGISTRAR, VIJAYAWADA, KRISHNA DISTRICT.
6. THE SUBREGISTRAR, PATAMATA, KALANAGAR, VIJAYAWADA,
KRISHNA DISTRICT.
…RESPONDENT(S):
Petition under Article 226 of the Constitution of India praying that in the
circumstances stated in the affidavit filed therewith, the High Court may be
pleased topleased to issue a Writ, order or direction, especially one in the nature
of Writ of Mandamus, declaring the award dated 21-1-2020 passed in Lok Adalat
Case No 04 of 2020 O.S.No. 446 of 2019 on the file of the Court of the Principal
Junior Civil Judge, Eluru) in respect of propertY of an extent of Ac.1-05 cts in
R.S.No. 80/5 and Ac. 1-93 cts in R.S.No. 45/1 of Yanamalakuduru, Penamaluru
Mandal, Krishna District described as Item No.2 (excluding Ac 0-03 cts in R.S.No.
80/10) since the award came to be passed by virtue of fraud played by 2nd and
3rd respondent on Court as well as petition and contrary to the provisions of
Legal Services Authority Act, 1987 and consequently set aside the award in
respect of property of an extent of Ac. 1-05 cts in R.S.N a. 80/5 and Ac. 1-93 cts
in R.S.No. 45/1 of Yanamalakuduru, Penamahru Mandal, Krishna District
described as Item No.2 (excluding Ac 0-03 cts in R.S.No. 80/10) in Lok Adalat
Award No. 04 of 2020 (O.S.No.446 of 2019 PJCJ, Eluru)IA NO: 1 OF 2020
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
direct the 5th and 6th respondents not to entertain any documents presented
seeking registration in respect of property of an extent of Ac. 1-05 cts in R.S.No.
80/5 and Ac. 1-93 cts in R.S.No. 45/1 of Yanamalakuduru, Penamaluru Mandal,
Krishna District described as Item No.2 (excluding Ac 0-03 cts in R.S.No. 80/10)
in Lok Adalat Award No. 04 of 2020 (O.S.No.446 of 2019 PJCJ, Eluru) pending
disposal of the above writ petition
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RRR,J & TCDS,J
W.P.No.3325 of 2020 & batchIA NO: 2 OF 2020
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 operation of award in Lok Adalat Case No. 04 of 2020 (O.S.No. 446
of 2019 PJCJ, Eluru) in relation to property of an extent of Ac. 1-05 cts in R.S.No.
80/5 and Ac. 1-a3 cts in R.S.No. 45/1 of Yanamalakuduru, Penamaluru Mandal,
Krishna District described as Item No.2 (excluding Ac 0-03 cts in R.S.No. 80/10)
in Lok Adalat Award No. 04 of 2020 (O.S.No.446 of 2019 PJCJ, Eluru) pending
disposal of the above Writ PetitionIA NO: 3 OF 2020
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
pleased to permit the petitioner as Muppavarapu Chowdary and Leela Rama
Krishna Prasad Trust instead of Muppavarapu Chowdary and Leela Krishna
Prasad Trust in the above Affidavit as well as miscellaneous petitions and passIA NO: 1 OF 2022
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
pleased to direct the respondents no.5 and 6 not to entertain any documents
submitted for registration, pertaining to the land to an extent of Ac.1.05 cents in
R.S.No.80/5 and Ac.1.93 cents in R.S.No.45/1 of YanamalakuduruPenamaluru
Mandal Krishna District pending disposal the above writ petition and pass such
otherIA NO: 2 OF 2022
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
pleased to direct the respondents no.2 and 3 not to enter into the land to an
extent of Ac.1.05 cents in R.S.No.80/5 and Ac.1.93 cents in R.S.No.45/1 of
YanamalakuduruPenamaluru Mandal Krishna District pending disposal the above
writ petition and pass such otherIA NO: 3 OF 2022
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
pleasedto extend the interim order dated 11.02.2020 (Lastly on 24-01-2022)
passed in the Writ Petition No.3325 of 2020 pending disposal the above writ
petition and pass such other order or
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RRR,J & TCDS,J
W.P.No.3325 of 2020 & batchIA NO: 4 OF 2022
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
pleased to permit the petitioner to contest W.P.No.3325 of 2020 as the GPA
agent of Mr.Kudaravalli Radha Krishna Murthy, the Trustee of the 1st petitioner
Trust in the writ petitionpending disposal the above writ petition and pass such
otherIA NO: 5 OF 2022
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
Pleased to disclosed in the accompanying affidavit it is \humbly prayed to this
Honble court that no prejudice would be caused to file additional affidavit at this
stage. On the other hand if this application is rejected, irreparable loss and injury
would incur tot he petitioner in as much as the respondent no.1 alleged trust
would be successful in establishing a fictitious right. Therefore it is just and
necessary that the present application be allowed and the present be permitted to
bring the additional affidavit on record in Wp.3325/2020IA NO: 1 OF 2023
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
pleased to grant leave to the Respondents 5 and 6 in the WP.No. 3325/2020 to
file counter affidavit in the above writ petition and passCounsel for the Petitioner(S):
1. MEKA RAHUL CHOWDARY
2. TURAGA SAI SURYA
Counsel for the Respondent(S):
1. S LAKSHMINARAYANA REDDY(SC FOR GVMC)
2. M R S SRINIVAS
3. NARAYANA RAJU UDDARAJU
4. KRISHNA C V GRANDHI
Date of Reserved :30.12.2025
Date of Pronouncement :06.03.2026
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W.P.No.3325 of 2020 & batchDate of upload :06.03.2026
The Court made the following Common Order:
(per Hon’ble Sri Justice R. Raghunandan Rao)
The dispute, in all these cases, is in relation to the estate of late
Dr.M.Leela Rama Krishna Prasad (herein after referred to as Dr.Prasad).
Dr.Prasad, after completion of his medical course, emigrated to the United
States of America and continued his practice, as a Doctor, in the United
States of America. He was a resident of the State of Illinois. After divorcing his
first wife, Dr. Prasad married Smt. Padmaja, on 28.12.1992. Dr. Prasad was
diagnosed with Cancer and after treatment for some months, passed away on
19.4.1999 in Henry Medical Center, Stock Bridge, Georgia.
2. Dr. Prasad had executed an unregistered power of attorney, in
favour of his brother Sri M.Hemanth Kumar, on 11.08.1981. Dr.Prasad
executed a second power of attorney, in favour of his brother Sri Hemanth
Kumar, on 23.12.1992. This power of attorney was registered as document
No.3021 of 1992 in the Office of Sub Registrar, Vijayawada.
3. After being diagnosed with Cancer, Dr.Prasad underwent
treatment, including Chemo Therapy. In the course of his illness, he had
executed a Will, dated 30.12.1998. This Will is related to the properties of Dr.
Prasad, in the United States of America, and the same is accepted by all the
parties.
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W.P.No.3325 of 2020 & batch
4. Two more Wills, dated 05.04.1999 and 17.04.1999, said to have
been executed by Dr. Prasad, have been produced as evidence in this suit.
Under these Wills, Dr. Prasad is said to have made arrangements, for
devolution of his properties, in India, in favour of some of his family members,
with a major part of his properties being constituted into a trust and to be used
for the purposes set out in the two wills. These wills were initially produced by
Sri Hemanth Kumar, and marked as exhibits, in O.S No.69 of 2002, filed
before the XII Additional District Judge, Krishna at Vijayawada. One of the
sisters of Dr. Prasad, namely Smt. Nirmala Kumari, has accepted these two
Wills and it has been her stand, before this Court, that these two Wills have
been executed by Dr. Prasad and the wishes of Dr.Prasad, in constituting a
trust for these properties, should be honoured. Sri Hemanth Kumar and the
other sisters of Dr. Prasad dispute the Will. Similarly, Smt. Padmaja, the wife
of Dr. Prasad, disputes the two Wills.
5. Smt. Padmaja, claiming that Dr. Prasad had passed away,
intestate, in relation to his properties in India, filed O.S. No.69 of 2002, before
the XII Additional District Judge, Vijayawada for partition of the properties of
Dr. Prasad, between herself and the mother of Dr. Prasad as they were the
sole legal heirs, on whom the estate of Dr. Prasad would devolve, in equal
shares upon herself and her mother in law, who is the mother of Dr. Prasad.
6. The above suit was originally filed against the mother of Dr.
Prasad and Sri Hemanth Kumar, the younger brother of Dr. Prasad. The
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W.P.No.3325 of 2020 & batch
mother of Dr. Prasad, passed away during the pendency of the suit. Her legal
heirs, namely her sons and daughters, were impleaded as defendant
Nos.2and 4 to 10. Similarly, the Muppavarapu Chowdary and Leela Rama
Krishna Prasad Trust(hereinafter referred to as the Trust), which is the main
beneficiary of the two Wills, was impleaded as defendant No.11 and two
persons said to be trustees of this trust were impleaded as defendant Nos.12
& 13.
7. The trial Court, after completion of the trial and after hearing the
contentions raised by all the opposing parties, disbelieved the Wills and had
allowed the suit, by judgment and preliminary decree, dated 08.04.2013.
Aggrieved by this judgment, Sri Hemanth Kumar and other sisters of Dr.
Prasad have filed A.S No.645 of 2013 before this Court. Similarly, the
Muppavarapu Chowdary and Leela Rama Krishna Prasad Trust filed A.S
No.707 of 2014, before this Court, against the same judgment and decree.
8. While these appeals were pending, Sri Ch.Koteswara Rao and
Smt. M. Parvathi had filed O.S No.445& 446 of 2019, respectively, before the
Principal Junior Civil Judge, Eluru, for permanent injunctions, restraining Sri
Hemanth Kumar from interfering with their possession over certain properties,
which are said to have been transferred in their favour, by way of agreements
of sale, and also by way of lease agreements. Some of the properties
mentioned in the suit, belong to Dr. Prasad. Subsequently, the parties in these
suits are said to have arrived at a settlement and the terms of the settlement
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W.P.No.3325 of 2020 & batch
were placed before the Lok Adalat, at Eluru, and awards came to be passed,
by the Lok Adalat, on 21.01.2020. Under these awards, some of the properties
of Dr.Prasad, which were the subject matter of these suits, were to be
transferred to Sri Ch. Koteswara Rao and Smt. Parvathi by Sri Hemanth
Kumar.
9. The trust challenged these two awards, by way of writ petitions
vide W.P Nos.3325 and 3807 of 2020. Similarly, Smt. Padmaja challenged the
awards, by way of writ petitions vide WP Nos.1538 and 15403 of 2021. The
Division Bench of this Court, had granted suspension of the awards, in the writ
petitions, filed by the trust. As deeds of sale, vide document Nos.3567 & 3568,
dated 14.04.2023, had been executed and registered by Sri Hemanth Kumar
in favour of Sri Ch.Koteswara Rao, the trust had filed W.P No.13966 of 2023
challenging the registration of the said deeds of sale. Apart from this, the trust
also moved a contempt case vide C.C No.5225 of 2023 against Sri Hemanth
Kumar on the ground of violation of the directions of this Court.
10. In view of the contradictions surrounding the execution of deeds
of sale, an enquiry had been initiated under Section 81 of the Registration Act,
into the execution and registration of the said deeds of sale. Aggrieved by the
initiation of such an enquiry, Sri Ch. Koteswara Rao moved this Court, by way
of W.P No.16510 of 2023. Apart from this, both Ch. Koteswara Rao and Smt.
M. Parvathi have filed applications to implead themselves in A.S.No.645 of
2013. The applications, filed by Sri Ch. Koteswara Rao, have been numbered
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W.P.No.3325 of 2020 & batch
as I.A.No.1 of 2023 in A.S.No.707 of 2014 and I.A.No.1 of 2023 in A.S.No.645
of 2013. Similarly, the implead petitions, filed by Smt. M. Parvathi, have been
numbered as I.A.No.2 of 2023 in A.S.No.707 of 2014 and I.A.No.2 of 2023 in
A.S.No.645 of 2013.
11. Heard Sri M.R.S. Srinivas learned counsel, appearing for the
plaintiff, Sri Y.N. Vivekananda learned counsel appearing for defendants 2
and 4 to 10, who are the appellants in A.S.No.645 of 2013 and Sri O. Manohar
Reddy, the learned Senior Counsel appearing for the appellant in A.S.No.707
of 2014.
12. As can be seen from the above facts, all these cases are
interconnected and the results of these cases are dependent on each other.
Further, all the parties in these cases are, more or less, parties in all the
cases. In that view of the matter all these cases are being disposed of, by way
of this common order.
13. The appeals and writ petitions, in the present litigation, can be
considered in three parts.
PART I :A.S.No. 645 and A.S.No.707 of 2013, dealing with the
question of whether the Wills of 5.4.1999 and 17.04.1999 had been executed
by Dr. Prasad; whether they have been proved, in accordance with law and
whether the property of Dr. Prasad would devolve, according to the Wills, on
the Trust or whether the property of Dr. Prasad would devolve on his legal
heirs.
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PART II: The writ petitions filed on the issue of whether the Lok Adalat
awards, obtained in Eluru, West Godavari District are valid and whether these
awards and subsequent sale deeds would create any right over the property
of Dr. Prasad, in favour of Sri Ch. Koteswara Rao and Smt. M. Parvathi.
PART III: The interlocutory applications filed in A.S.No. 645 and 707
of 2013, for impleading Sri Ch. Koteswara Rao and Smt. M. Parvathi in
A.S.No. 645 and 707 of 2013.
PART I : A.S. 645 of 2013 and A.S. No. 707 of 2013
14. Before going in to the respective contentions of the learned
counsel for the petitioner, appearing for the parties before this Court, it would
be necessary to review the pleadings raised before the trial Court.
15. Smt. M. Padmaja, filed O.S.No.69 of 2002, claiming half share in
the property and estate of late Dr. Prasad. The plaintiff contended, in the
plaint, that Dr. Prasad had been diagnosed with cancer in 1997. His prolonged
illness required treatment as an inpatient in the hospital. At that time, the close
relatives of Dr. Prasad, living in the United States took undue advantage of the
grief and helplessness of Smt. Padmaja and Dr. Prasad and made out that Dr.
Prasad had created a trust for his properties, in India. Dr. Prasad was
admitted to Henry Medical Centre, Stock Bridge, Georgia on 05.04.1999 and
passed away, intestate, on 19.04.1999. During this period, Dr. Prasad, while
he was in hospital, was put on a heavy dosage of pain killer drugs due to
which, Dr. Prasad was not in a sound state of mind. After completing the
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cremation ceremonies of Dr. Prasad, after his death on 19.07.1999, Smt.
Padmaja had come to India on 25.04.1999 for performing the remaining
ceremonies for Dr. Prasad. Smt. Padmaja remained in India till the end of
January, 2000 and pursued a computer course in Hyderabad. She went back
to the United States of America on 02.02.2000 and was able to obtain the
benefit of the Will, executed by Dr. Prasad, on 30.12.1998, in relation to the
property of Dr. Prasad situated in the United States of America. Smt. Padmaja
could obtain the benefits only after initiating litigation in the Circuit Court in
Illinois. At that stage, Smt. Padmaja, having come out of the influence of the
defendants took up steps to ascertain the properties of Dr. Prasad and to get
her rightful share in the said property.
16. Smt. Padmaja also contended, in the plaint, that her signatures
were taken, by Sri Hemanth Kumar, on various typed papers. She was
unaware of the contents of these papers and that the defendants were
misusing those papers to state that she had accepted reduction of the share
of her husband, which devolved on her, in certain firms. She executed a
power of attorney in favour of Sri Hemanth Kumar, who was the 2nd defendant,
in O.S.No.69 of 2002, to represent her interest in the said firm. Later, having
come to know of all the steps being taken by the defendants to deprive her of
her rightful share in the property, of Dr. Prasad, she had issued a legal notice,
dated 11.01.2002, calling upon Sri Hemanth Kumar to render proper accounts
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to her and also to furnish copies of Wills alleged to have been executed by Dr.
Prasad, in relation to the properties in India.
17. Smt. Padmaja claimed that Dr. Prasad was the owner of six items
of immovable property which were set out in Schedule-A of the plaint and that
he was a partner having 40% share in M/s. Muppavarapu Chowdary Builders
and Real Estate Developers and that she would be entitled to half this share.
The said share in the firm, which was also arrayed, as defendant No.3, in the
suit, was set out in Schedule-B of the plaint.
18. Defendants 1, 2 and 6 to 8 filed a common written statement. In
this written statement, it was contended that Dr. Prasad had executed two
Wills, dated 05.04.1999 and 17.04.1999, relating to his properties situated in
India and that a Trust known as “Muppavarapu Chowdary and Leela Rama
Krishna Prasad Trust” had been constituted, under these Wills, in relation to
these properties, which were to be used for the benefit of the mother of Dr.
Prasad and thereafter to be used for various charitable purposes. Smt.
Padmaja knowing about the said execution of the two Wills had deliberately
ignored these two Wills and had filed the suit as if Dr. Prasad had passed
away, intestate, and that she would be entitled to half the property of Dr.
Prasad. Further, items 2 and 5, set out in Schedule-A, had already been sold
away during the lifetime of Dr. Prasad, in 1980-81 and 1989-90 and
consequently were not properties of Dr. Prasad by the time he had passed
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away. A specific statement was also made that items 1, 3, 4 and 6 of
Schedule-A were in the possession and management of the Trust.
19. It may also be noted that the aforesaid recital of the pleadings,
does not include all the details of the pleadings and is only a prima facie
recital of the pleadings, for the purposes of the present judgment. Smt.
Padmaja was examined as P.W.1 and Dr. M. Kishore Babu was examined as
P.W.2. Four witnesses were examined on behalf of the defendants including
Sri M. Hemanth Kumar as D.W.1 and Dr. Raju Vanapalli, an attestor of the
Wills, dated 05.04.1999 and 19.04.1999, as D.W.4. Various facts were
deposed by these witnesses and certain other facts also came to light on
account of the cross examination of these witnesses. Such facts would be
discussed in detail hereinafter. The Trial court disbelieved the two Wills, and
held that Smt. Padmaja would be entitled to a half share of the property set
out in the Schedules to the suit. Aggrieved by this judgment and decree dated
08.04.2013. Aggrieved by this judgment, Sri Hemanth Kumar and other sisters
of Dr.Prasad have filed A.S No.645 of 2013 before this Court. Similarly, the
Muppavarapu Chowdary and Leela Rama Krishna Prasad Trust filed A.S
No.707 of 2014, before this Court, against the same judgment and decree.
20. Though the appeals have been filed by the defendants, in the suit,
it would be appropriate to first consider the contentions raised, in the present
appeal, by the plaintiff. The contentions of Sri M.R.S. Srinivas, the learned
counsel appearing for Smt. Padmaja, are that:
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i) The Wills which were said to have been executed in the United
States of America, were produced by the defendants, during the course of
cross examination of Smt. Padmaja. There is no pleading in the written
statement as to how the defendants came to be in possession of the Wills,
dated 05.04.1999, and 17.04.1999. The 2nd defendant, in the reply notice sent
on his behalf, states that copies of the Will were given by Smt. Padmaja
herself to Sri Hemanth Kumar in April, 1999 but Sri Hemanth Kumar was not
in possession of the original Will or Wills. In the written statement, there is no
mention as to which defendant and when Smt. Padmaja had handed over the
original Will. In substance, there is no pleading, recording the manner in which
the originals of the Wills, dated 05.04.1999 and 17.04.1999, came to be in the
possession of the defendants. Sri Hemanth Kumar, in the course of his cross
examination, as D.W.1, had stated that the documents had been handed over
by Smt. Padmaja, to the mother of Dr. Prasad, who inturn handed over the
same to Sri Hemanth Kumar in the last week of April, 1999. The same cannot
be accepted. The statement in the reply notice of 17.01.2002 that he was not
in possession of the original Wills clearly contradicts his statement in the cross
examination.
ii) The Wills, said to have been executed, on 05.04.1999 and
17.04.1999, were not within the knowledge of the plaintiff. However, Sri
Hemanth Kumar giving evidence as D.W.1 contended that the Wills were
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W.P.No.3325 of 2020 & batchhanded over by the plaintiff herself. As such, the chain of custody of these
Wills is highly suspect and consequently the Wills cannot be looked into.
iii) The evidence of D.W.1 would have to be totally eschewed as the
said evidence has various discrepancies. The plaintiff, had come into India,
after the demise of Dr. Prasad only on 25.04.1999 which can be seen from the
entries in the passport of the plaintiff, which has been marked as Ex.A9.
However, a deed of reconstitution of a partnership firm, dated 20.04.1999, has
been produced by D.W.1 and marked as Ex.B2. This reconstitution deed is
said to have been signed by the plaintiff, on 20.04.1999, in Vijayawada, while
she was actually in the United States of America. The manner, in which the
share of Dr. Prasad, in the partnership firm M/s Muppavarapu Chowdary
Builders & Real Estate Developers, had been handled and given away to
persons, who are not entitled to such shares, would also demonstrate the
falsity of the case put forward by the defendants in the suit.
iv) The further discrepancies and contradictions in the evidence of
D.W.1 is that in his cross examination he first states that the suit schedule
property had been handed over to the trust in April, 1999.Subsequently he
changes his version and says that the property was handed over to the Trust,
in December, 1999. The signature of Dr. Prasad, in Ex.A6, which was the Will
executed by Dr. Prasad, in relation to the properties in United States of
America is totally different to the signature of Dr. Prasad, in the disputed Wills
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Ex.B.18, which is the Will executed on 05.05.1999 as well as Ex.B.19 which
was executed on 17.04.1999.
v) The Wills in question, are said to have been in the custody of the
plaintiff and handed over to the defendants. The plaintiff had clearly denied
possession of the Will or knowledge of the Wills. The defendants have not
proved how it was brought to India and who had handed over the Wills to the
defendants. There is no cross examination in this regard nor is there any
admission by the plaintiff in her cross examination. It is only in the cross
examination of D.W.1 that it was stated that the Wills had been given by the
plaintiff to the mother of Dr. Prasad, who was arrayed as defendant No.1 in
the suit and that no such statement was made either in the written statement
filed by the defendants or in the chief examination of D.W.1. In the absence of
clear line of custody, the Will cannot be accepted in view of the judgment of
the Hon‟ble Supreme Court in Union of India vs. Ibrahim Uddin and
Another1.
vi) Once custody of the Wills is doubtful, the said Wills cannot be relied
upon. Sait Tarajee Khimhanda and Others vs. Yelamarti Satyam Alias
Satteyya and Ors.,2 K. Laxmanan vs. Thekkayil Padmini and Ors.3
vii) All the attestors to the Wills have not given evidence recording
the execution of the said Wills by Dr. Prasad;
1
(2012) 8 SCC 148 (paras 12 and 21)
2
(1972) 4 SCC 562 (para 15)
3
(2009)1 SCC 354 (paras 18 to 24, 27 to 34)
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viii) Section 228 read with Section 57 and Section 213 of the Indian
Succession Act requires probate of the Will, executed outside India, in the
Courts, in the country where the Will was executed, and only then can a
subsequent probate, of the Will, take place in the Court in India. The two
Wills marked as Exs.B.11 and B.12 have been produced in the Court in India
directly without going through the process of probate in the Courts in United
States of America. This infraction of the provisions of the Indian Succession
Act would require the two Wills to be eschewed.
ix) Both the Wills have been attested by the Consular Officer in the
Indian Consulate in San Francisco. Such an endorsement is impermissible
as the appropriate Indian consulate for this purpose is the Indian Consulate
in Atlanta and not in San Francisco. Once there is no valid attestation by the
consulate, the said document cannot be looked into especially in view of the
Hague convention on conflict of laws relating to the form of testator
dispensation concluded on 5.10.1961.
x) The signature of Dr. Prasad has not been proved by way of
independent evidence and in any event the admitted signature of Dr.
Prasad in Ex.A.6 is at total variance with the signatures of Dr. Prasad in the
impugned Wills marked as Exs.B.11 and B.12.
xi) The Will, executed on 05.04.1999, had mentioned certain
trustees to whom the property is to be entrusted. However, one of the said
trustees died, even before Dr. Prasad, and as such, the said trust, even if it
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is accepted to be genuine, becomes void as one of the trustees had passed
away, even before the Trust had come into existence. It is the case of the
trust, that this necessitated the execution of a second Will, dated
17.04.1999. However, there is no mention of the Will, dated 05.04.1999, in
the Will dated 17.04.1999 and this version of the trust would have to be
rejected.
xii) The Will cannot be believed and would have to be eschewed
because a) execution of the Will is implausible b) there is huge variation in
the signatures of Dr. Prasad on the Wills on one hand and the Will
executed in relation to the properties in America, c) Dr. Prasad, who was
under heavy sedation, could not have been of a sound and disposing mind
when he is said to have executed these two Wills.
xiii) There is no discernible scribe, who had prepared the said Wills
and consequently the said Will would have to be disbelieved and finally
the attestation of these Wills by the consular officer in San Francisco
when it should be done by the consulate in Atlanta, is sufficient to
disbelieve the said Wills .
xiv) The judgment of the erstwhile High Court of Andhra Pradesh in
Gajanan Stores, Hyderabad and Ors., vs. Shailaja Khadilkar and
Ors.,4 relating to the exemption under Section 57 of the Succession Act as
well as the judgments in Sameer Kapoor and Another vs. State through
Sub-Divisional Magistrate South, New Delhi and
4
(2012) 4 ALD 732
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Ors., 5 Parameshwaran Subramani vs. Nil., 6 D.E.D. Cohen vs.
Baidyanath Mukherje., 7 and Ramesh Nivrutti Bhagwat vs. Dr.
Durendra Manohar Parakhe., 8 militate against acceptance of the Wills
and it must be held that the said Wills have not been proved in accordance
with law and cannot be looked into.
xv) The evidence of D.W.4 is not sufficient to prove the Wills as there
are no details, given in the pleadings about how the Wills were executed
nor is there any mention of the second attestor.
xvi) D.W.4 in his evidence clearly stated that the affidavit filed in lieu
of examination-in-chief had been prepared by K.R.K. Murthy, who is one
of the trustees who would benefit from the Will and as such, the neutrality
of D.W.4 is highly suspect. Reliance is placed on Vidhyadhar vs.
Manikrao and Another 9 . The evidence of D.W.1 about the time when
possession was taken by the Trust, contains too many discrepancies to be
believed. In such suspicious circumstances, the Wills would have to be
discarded.
xvii) Non examination of K. Radha Krishna Murthy, who is also an
attesting witness, is fatal. Vidyadhar vs. Manikrao and Another 10 .
Finally, no evidence could have been adduced regarding the will etc., as
5
(2020) 12 SCC 480
6
2016 SCC Online Karnataka 3997
7
AIR 1938 Calcutta 507
8
(2020) 17 SCC 284
9
AIR 1999 SC 1441: (1999) 3 SCC 573
10
(1999) 3 SCC 573 (para 17)
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there was no pleading in support of such evidence. Kanchhu vs.
Prakash Chand and Ors., 11 Shivshankara and Another vs. H.P.
Vedavyasa Char..12
xviii) The Wills have to be discarded, on the basis of H.
Venkatachala Iyengar vs. B.N. Thimmajamma and Ors., 13 Kalyan
Singh, London Trained Cutter, Hohri Bazar, Jaipur vs. Smt. Chhoti
and Ors.,14(no proof of custody and no pleading) Bharpur Singh and
Ors., vs. Shamsher Singh., 15 involvement of legal representatives, in
execution of the Wills are suspicious circumstances. Leela and Ors vs.
Muruganantham and Ors., 16 Meena Pradhan and Ors., vs. Kamla
Pradhan and Another17.
xix) Dr. Prasad had been suffering from Cancer and had been on
pain killers, due to which he was not in a sound and disposing mind. The
first Will is said to have been executed on 05.04.1999. On that day, Dr.
Prasad had suffered a heart attack and was hospitalized. As such, the
execution of the Will on 05.04.1999, by Dr. Prasad is highly implausible.
After being admitted in hospital, on 05.04.1999, Dr. Prasad was given
11
(2025) SCC online SC page 868 (paras 19 and 20)
12
(2023) 13 SCC page 1 (paras 64 & 65)
13
AIR 1959 SC 443 (paras 18 to 22)
(1990) 1 SCC 266 (paras 22 and 23)
14
(2009) 3 SCC 687 (paras 14 to 23)
15
16
(2025) 4 SCC 289 (paras 16 to 33)
17
(2023) 9 SCC 734 (paras 9 to 14)
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heavy doses of pain killers. One of the consequences of such dosage was
that the mental condition of Dr. Prasad was very hazy and he could not
have executed the Will knowing fully well, the contents and consequences
of such a Will. The mental condition of Dr. Prasad, on 17.04.1999, can be
ascertained from Ex.A.6, which is the medical record of the treatment
given to Dr. Prasad from 05.04.1999 till his demise. The effect, of the
medicines and pain killers given to Dr. Prasad, has been explained by
P.W.2 who is a competent forensic specialist.
xx) In the course of their arguments, Sri D.V. Sitarama Murthy
and Sri Krishna Grandhi, learned senior Counsel appearing for the
implead petitioners, contended that the authorities, of the Endowments
Department, in reply to a query, raised under the Right to Information Act,
had stated that they do not have any record of the trust, in their records,
which would mean that the trust is not in existence. This contention was
also adopted by Sri M.R.S. Srinivas, appearing for Smt. Padmaja and is
treated as a contention raised by Sri M.R.S. Srinivas also.
21. Sri O. Manohar Reddy, the learned Senior Counsel, appearing for
the Trust, which is the appellant in A.S.No.707 of 2014, contends as follows:
i) Smt. Padmaja, was aware of the execution of the wills, in question.
This can be seen from the statements in the notice, dated 11.01.2002, sent on
her behalf. She does not deny or dispute the execution of the Wills, by her late
husband, Dr. Prasad. In fact, she states that the relatives of Dr Prasad, taking
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advantage of the situation had been spreading stories that Trusts had been
created over the properties of Dr. Prasad. Apart from that Smt. Padmaja had
asked for copies of documents because she knew about the execution of the
Wills.
ii) There was a clear statement, in the notice sent in reply, that Dr.
Prasad had executed a Will and that Smt. Padmaja had acknowledged this
fact in an affidavit signed by her, on 31.01.2000, marked as Exhibit B6. Apart
from this the reply also stated that Smt. Padmaja herself had given copies, of
the Wills, to Sri Hemanth Kumar. However, these statements were not
rebutted, in any manner, by Smt. Padmaja, except a bald and vague
statement that these statements were false. In the absence of any rebuttal,
Smt. Padmaja cannot take the stand that there were no such Wills or that she
was unaware of the Wills. Consequently, the production of the Wills, by the
defendants, cannot be treated as production of documents from improper
custody.
iii) The evidence given by D.W.4, which has not been controverted or
shaken, is that Dr. Prasad had executed the first Will in the afternoon of
05.04.1999 while he had been admitted in the Hospital, in the evening of that
day, after he had a heart attack. The material, in Ex.A.7, would show that Dr.
Prasad had suffered a Heart Attack, in the evening of 05.04.1999, when he
was hospitalized and as such, the occurrence of the heart attack would not
affect the execution of the Will. The learned Senior Counsel would also submit
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that the details, set out in Ex.A.7, clearly show that Dr. Prasad was not only in
a sound and disposing mind but was in control of all his mental faculties. The
learned Senior Counsel would submit that this is obvious from the notations in
the medical records, contained in Ex.A7, which shows that Dr. Prasad was
participating in decisions regarding the treatment that should be given to him
and that the views of Dr. Prasad were being accepted by the doctors treating
Dr. Prasad.
iv) The medical record of treatment given to Dr. Prasad during the
relevant period has been marked as Ex. A7. These records would show that
Dr. Prasad was in full control of all his faculties and was, in fact, supervising
his treatment by discussing about the medication that was given to him etc.
The contention of the plaintiff, as well as the implead applicants, that the
quantum of painkillers being given to Dr. Prasad deadened the faculties of Dr.
Prasad and he would not have been aware of what he was doing during this
period also cannot be accepted. The evidence of P.W.2, who had given his
opinion, about the treatment given to Dr. Prasad, cannot be accepted as
P.W.2 was not physically present at the place of treatment and the evidence
given by P.W.2 is extremely sketchy and has obviously been given for the
purposes of assisting Smt. Padmaja.
v) Dr. Prasad, had executed three Wills. The first Will related to the
properties in the United States of America and would not be relevant for the
purposes of this suit as none of the properties covered by the said Will are the
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subject matter of the present litigation. Dr. Prasad apart from this Will, had
executed two Wills, dated 05.04.1999 and 17.04.1999. Both these Wills were
witnessed and attested by Dr. Raju Vanapalli, who was examined as D.W.4.
Both these Wills have been marked as Exs.B.18 and B.19 and have been
proved by the evidence of D.W.4. The cross examination of D.W.4 also does
not contain anything which shakes the evidence of D.W.4. D.W.4, is an
unconnected person, of impeccable reputation and standing, which can be
seen from the positions he had held and which have been recorded in his
deposition. The evidence of such a person cannot be doubted.
vi) The trial Court, had disbelieved the evidence of D.W.4 on totally
extraneous grounds and the evidence of D.W.4 could not have been rejected
in that manner.
vii) The contentions of the plaintiff and the objections sought to be
raised by the implead petitioners Ch. Koteswara Rao and Smt. M. Parvathi
that Dr. Prasad was in no condition to execute the Wills, dated 05.04.1999
and 17.04.1999 would have to be rejected.
22. In view of the aforesaid pleadings, and in view of the depositions
of the witnesses, as well as the contentions raised by the learned counsel
appearing for the parties, the following issue would arise for consideration
before this Court.
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1. Whether the Wills, of 05.04.1999 and 17.04.1999, have been
proved according to Law and are valid?
2. Whether, the trust, which is the appellant in A.S.No. 707 of 2014,
has come into existence?
3. Whether, Dr. Prasad had passed away Intestate, entitling Smt.
Padmaja to a half share of the properties, of Dr. Prasad, in India or whether
the devolution of the estate of Dr. Prasad is to be according to the Will of
17.04.2019 ?
Consideration of the Court:
ISSUE No. 1: “Whether the Wills, of 05.04.1999 and 17.04.1999, have
been proved according to Law and are valid”?
23. The law regarding the manner in which Wills have to be
proved and what circumstances, should be looked into, while considering a
Will and in what circumstances, such Wills can be disregarded has been
considered by the Hon‟ble Supreme court, in various judgments. Sri M.R.S.
Srinivas had cited various judgments, set out above, on how a Will is to be
proved and in what circumstances a Will could be disbelieved. The judgments
cited by Sri M.R.S. Srinivas, have, consistently, set out certain guideline and
principles. These guidelines are best summarized in H. Venkatachala
Iyengar v. B.N. Thimmajamma., 18 in the following manner:
1958 SCC OnLine SC 31 : 1959 Supp (1) SCR 426 : AIR 1959 SC 443
18
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18. What is the true legal position in the matter of proof of wills? It is
well-known that the proof of wills presents a recurring topic for
decision in courts and there are a large number of judicial
pronouncements on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt seeking to prove a
document and, in deciding how it is to be proved, we must inevitably
refer to the statutory provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be signed by any
person, the signature of the said person must be proved to be in his
handwriting, and for proving such a handwriting under Sections 45
and 47 of the Act the opinions of experts and of persons acquainted
with the handwriting of the person concerned are made relevant.
Section 68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a document
shall not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution. These provisions
prescribe the requirements and the nature of proof which must be
satisfied by the party who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of sound mind, not
being a minor, may dispose of his property by will and the three
illustrations to this section indicate what is meant by the expression
“a person of sound mind” in the context. Section 63 requires that the
testator shall sign or affix his mark to the will or it shall be signed by
some other person in his presence and by his direction and that the
signature or mark shall be so made that it shall appear that it was
intended thereby to give effect to the writing as a will. This section
also requires that the will shall be attested by two or more witnesses
as prescribed. Thus the question as to whether the will set up by the
propounder is proved to be the last will of the testator has to be
decided in the light of these provisions. Has the testator signed the
will? Did he understand the nature and effect of the dispositions in
the will? Did he put his signature to the will knowing what it
contained? Stated broadly it is the decision of these questions which
determines the nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will has to be proved
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like any other document except as to the special requirements of
attestation prescribed by Section 63 of the Indian Succession Act. As
in the case of proof of other documents so in the case of proof of wills
it would be idle to expect proof with mathematical certainty. The test
to be applied would be the usual test of the satisfaction of the prudent
mind in such matters.
19. However, there is one important feature which distinguishes wills
from other documents. Unlike other documents the will speaks from
the death of the testator, and so, when it is propounded or produced
before a court, the testator who has already departed the world
cannot say whether it is his will or not; and this aspect naturally
introduces an element of solemnity in the decision of the question as
to whether the document propounded is proved to be the last will and
testament of the departed testator. Even so, in dealing with the proof
of wills the court will start on the same enquiry as in the case of the
proof of documents. The propounder would be called upon to show
by satisfactory evidence that the will was signed by the testator, that
the testator at the relevant time was in a sound and disposing state of
mind, that he understood the nature and effect of the dispositions and
put his signature to the document of his own free will. Ordinarily when
the evidence adduced in support of the will is disinterested,
satisfactory and sufficient to prove the sound and disposing state of
the testator’s mind and his signature as required by law, courts would
be justified in making a finding in favour of the propounder. In other
words, the onus on the propounder can be taken to be discharged on
proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will
may be surrounded by suspicious circumstances. The alleged
signature of the testator may be very shaky and doubtful and
evidence in support of the propounder’s case that the signature, in
question is the signature of the testator may not remove the doubt
created by the appearance of the signature; the condition of the
testator’s mind may appear to be very feeble and debilitated; and
evidence adduced may not succeed in removing the legitimate doubt
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as to the mental capacity of the testator; the dispositions made in the
will may appear to be unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise indicate that the
said dispositions may not be the result of the testator’s free will and
mind. In such cases the court would naturally expect that all
legitimate suspicions should be completely removed before the
document is accepted as the last will of the testator. The presence of
such suspicious circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily discharged, courts
would be reluctant to treat the document as the last will of the
testator. It is true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the execution of the
will propounded, such pleas may have to be proved by the caveators;
but, even without such pleas circumstances may raise a doubt as to
whether the testator was acting of his own free will in executing the
will, and in such circumstances, it would be a part of the initial onus to
remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just
referred, in some cases the wills propounded disclose another
infirmity. Propounders themselves take a prominent part in the
execution of the wills which confer on them substantial benefits. If it is
shown that the propounder has taken a prominent part in the
execution of the will and has received substantial benefit under it, that
itself is generally treated as a suspicious circumstance attending the
execution of the will and the propounder is required to remove the
said suspicion by clear and satisfactory evidence. It is in connection
with wills that present such suspicious circumstances that decisions
of English courts often mention the test of the satisfaction of judicial
conscience. It may be that the reference to judicial conscience in this
connection is a heritage from similar observations made by
ecclesiastical courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the word
“conscience” in this context would, in our opinion, be purely technical
and academic, if not pedantic. The test merely emphasizes that, in
determining the question as to whether an instrument produced
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W.P.No.3325 of 2020 & batch
before the court is the last will of the testator, the court is deciding a
solemn question and it must be fully satisfied that it had been validly
executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which
arise in applications for probate or in actions on wills, no hard and
fast or inflexible rules can be laid down for the appreciation of the
evidence. It may, however, be stated generally that a propounder of
the will has to prove the due and valid execution of the will and that if
there are any suspicious circumstances surrounding the execution of
the will the propounder must remove the said suspicions from the
mind of the court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of these two
general and broad principles would always depend upon the facts
and circumstances of each case and on the nature and quality of the
evidence adduced by the parties. It is quite true that, as observed by
Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] “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”. It would sound platitudinous to say so, but it is
nevertheless true that in discovering truth even in such cases the
judicial mind must always be open though vigilant, cautious and
circumspect.
24. The aforesaid principles have been reiterated in Kalyan Singh,
London Trained Cutter, Hohri Bazar, Jaipur vs. Smt. Chhoti and Ors.,
Bharpur Singh and Ors., vs. Shamsher Singh., 19 Leela and Ors vs.
Muruganantham and Ors.,20 Meena Pradhan and Ors., vs. Kamla Pradhan
19
(2009) 3 SCC 687 (paras 14 to 23)
20
(2025) 4 SCC 289 (paras 16 to 33)
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W.P.No.3325 of 2020 & batch
and Another21. Though, all these judgments have reiterated the principles laid
down above, it would be instructive to extract the observations in some of the
above judgments as they have elucidated the judgment in Venkatachala
Iyengar v. B.N. Thimmajamma.
In Bharpur Singh v. Shamsher Singh, 22 the Hon‟ble Supreme Court held
as follows:
23. Suspicious circumstances like the following may be found to be
surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful
or not appear to be his usual signature.
(ii) The condition of the testator’s mind may be very feeble and
debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the
light of relevant circumstances like exclusion of or absence of
adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the
testator’s free will and mind.
(v) The propounder takes a prominent part in the execution of
the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.
In Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734 : 2023 SCC
OnLine SC 1198 at page 736:
21
(2023) 9 SCC 734 (paras 9 to 14)
22
(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934 : 2008 SCC OnLine SC 1867 at page 699
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W.P.No.3325 of 2020 & batch
10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma [H.
Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC OnLine SC
31 : 1959 Supp (1) SCR 426 : AIR 1959 SC 443] (three-Judge
Bench), Bhagwan Kaur v. Kartar Kaur [Bhagwan
Kaur v. KartarKaur, (1994) 5 SCC 135] (three-Judge Bench), Janki
Narayan Bhoir v. Narayan Namdeo Kadam [Janki Narayan
Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] (two-Judge
Bench), YumnamOngbiTamphaIbema Devi v. YumnamJoykumar
Singh [YumnamOngbiTamphaIbema Devi v. YumnamJoykumar
Singh, (2009) 4 SCC 780 : (2009) 2 SCC (Civ) 348] (three-Judge
Bench)and Shivakumar v. Sharanabasappa [Shivakumar v. Sharan
abasappa, (2021) 11 SCC 277] (three-Judge Bench), we can
deduce/infer the following principles required for proving the validity
and execution of the will:
10.1. The court has to consider two aspects : firstly, that the will is
executed by the testator, and secondly, that it was the last will
executed by him;
10.2. It is not required to be proved with mathematical accuracy, but
the test of satisfaction of the prudent mind has to be applied.
10.3. A will is required to fulfil all the formalities required under
Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the will or it shall be
signed by some other person in his presence and by his
direction and the said signature or affixation shall show that it
was intended to give effect to the writing as a will;
(b) It is mandatory to get it attested by two or more witnesses,
though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have 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
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W.P.No.3325 of 2020 & batchreceived from the testator a personal acknowledgment of such
signatures;
(d) Each of the attesting witnesses shall sign the will in the presence
of the testator, however, the presence of all witnesses at the same
time is not required;
10.4. For the purpose of proving the execution of the will, at least
one of the attesting witnesses, who is alive, subject to the process
of court, and capable of giving evidence, shall be examined;
10.5. The attesting witness should speak not only about the
testator’s signatures but also that each of the witnesses had signed
the will in the presence of the testator;
10.6. If one attesting witness can prove the execution of the will, the
examination of other attesting witnesses can be dispensed with;
10.7. Where one attesting witness examined to prove the will fails to
prove its due execution, then the other available attesting witness
has to be called to supplement his evidence;
10.8. Whenever there exists any suspicion as to the execution of
the will, it is the responsibility of the propounder to remove all
legitimate suspicions before it can be accepted as the testator’s last
will. In such cases, the initial onus on the propounder becomes
heavier.
10.9. The test of judicial conscience has been evolved for dealing
with those cases where the execution of the will is surrounded by
suspicious circumstances. It requires to consider factors such as
awareness of the testator as to the content as well as the
consequences, nature and effect of the dispositions in the will;
sound, certain and disposing state of mind and memory of the
testator at the time of execution; testator executed the will while
acting on his own free will;
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10.10. One who alleges fraud, fabrication, undue influence et cetera
has to prove the same. However, even in the absence of such
allegations, if there are circumstances giving rise to doubt, then it
becomes the duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing explanation.
10.11. Suspicious circumstances must be “real, germane and valid”
and not merely “the fantasy of the doubting mind
[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] “. Whether a
particular feature would qualify as “suspicious” would depend on the
facts and circumstances of each case. Any circumstance raising
suspicion legitimate in nature would qualify as a suspicious
circumstance, for example, a shaky signature, a feeble mind, an
unfair and unjust disposition of property, the propounder himself
taking a leading part in the making of the will under which he
receives a substantial benefit, etc.
In Kalyan Singh v. Chhoti, (1990) 1 SCC 266 : 1989 SCC OnLine SC
340 at page 275:
22. The Privy Council in Mt. Biro v. Atma Ram [AIR 1937 PC 101 :
64 IA 92 : (1937) 1 MLJ 646] had an occasion to consider an
analogous case where the wife was practically disinherited and
there was unexplained delay in producing the will in public. There
the alleged will by a testator gave only a life estate to his daughter
who was the only child and who was to get some property at her
marriage. The bulk of the estate was vested in the widow of the
testator and three other women, namely, his mother, his step-
mother and his paternal aunt. These women though entitled under
the Hindu law only to maintenance, were made joint owners
equally with the widow of the testator. None of the devisees could
get the estate partitioned or alienate it for necessity. It was
however, provided that the lady, who survived the other three
devisees, would become the absolute owner of the estate. The
widow of the testator would not get her husband’s estate, if she
predeceased any of her co-devisees. The will was not produced
until after 22 years its execution though there were occasions to
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produce it, had it been in existence. Considering these
circumstances, the Privy Council observed (at 104):
“It is most unlikely that a person having a wife and a minor
unmarried daughter, who should be the objects of his affection,
would make a will which would practically disinherit them.
That the testament is unnatural and runs counter to the
ordinary sentiments of persons, having a status in society similar
to that of Harbans Lal, cannot be seriously disputed. But this is not
the only circumstance which tells against its genuineness. The will
purports to have been executed on August 24, 1900, and the
testator died within a month of that date. But it is strange that it
was not produced until 1922, after the commencement of the
present litigation. During this long period of 22 years, which
intervened, there were occasions when the widow or her advisers
could have produced the document, if it had been in existence; but
they did not do so.”
The will in the present case, constituting the plaintiff as a sole
legatee with no right whatever to the testator’s wife seems to be
unnatural. It casts a serious doubt on genuineness of the will. The
will has not been produced for very many years before the court or
public authorities even though there were occasions to produce it
for asserting plaintiff’s title to the property. The plaintiff was
required to remove these suspicious circumstances by placing
satisfactory material on record. He has failed to discharge his duty.
We therefore, concur with the conclusion of the High Court and
reject the will as not genuine.
It would also be apt to extract the following relevant passage, in
Shivakumar v. Sharanabasappa, 23 which has been cited by Sri O. Manohar
Reddy, to set out the contours of the examination of a Will and the
circumstances surrounding the execution of the Will:
12. For what has been noticed hereinabove, the relevant principles
governing the adjudicatory process concerning proof of a will could
be broadly summarised as follows:
23
(2021) 11 SCC 277 : 2020 SCC OnLine SC 385 at page 309
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W.P.No.3325 of 2020 & batch12.1. 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 been 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
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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 abovenoted 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 circumstances
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?
12.9. In the ultimate analysis, where the execution of a will is
shrouded in suspicion, it is a matter essentially of the judicial
conscience of the court and the party which sets up the will has to
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offer cogent and convincing explanation of the suspicious
circumstances surrounding the will.
This issue, applying the above guidelines, would have the following sub
issues:
A. Whether, the Wills are signed, witnessed and proved, in accordance
with the requirements of the Evidence Act and the Indian Succession
Act?
B. Whether there are any suspicious circumstances, relating to the Wills,
which would render the Wills invalid?
C. Whether the Wills executed in the United States of America can be
produced in the Court, in India, without obtaining probate of such Wills
in the United States of America?
D. Whether, the Wills meet the requirement of the Convention on the
conflict of laws relating to the form of testamentary dispositions?
25. Before going into these issues, a preliminary contention raised by
Sri M. R.S. Srinivas would have to be noticed. The Will of 05.04.1999, created
a trust with certain trustees. However, one of the prospective trustees, Sri V.
Natarajeswara Rao, had passed away, on 12.04.1999. Sri M.R.S. Srinivas
would contend, without prejudice to the contentions that Wills are invalid, that
the Will, of 05.04.1999, became void as one of the trustees, on whom the
properties were to devolve had passed away. Further, the Will of 17.04.1999,
43
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W.P.No.3325 of 2020 & batchappears to have been executed to get over this difficulty. In such a situation,
the said Will of 17.04.1999, which does not mention about the Will of
05.04.1999, is also invalid for non mention of the Will of 05.04.1999. This
court must reject this contention. Once, the Will of 17.04.1999, has been
executed, it would supersede the Will of 05.04.1999. The execution of the Will
of 17.04.1999, expresses the intent of Dr. Prasad to revoke the earlier Will.
Even otherwise, the demise of Sri Nata Rajeswara Rao had invalidated the
Will, of 05.04.1999.
ISSUE NO. 1 (A): “Whether, the Wills are signed, witnessed and proved,
in accordance with the requirements of the Evidence Act and the Indian
Succession Act ?
26. Any Unprivileged Will, has to be executed, in accordance with the
provisions of Section 63 of the Succession Act, which reads as follows:
Section 57. Application of certain provisions of Part to a class of wills
made by Hindus, etc.–The provisions of this Part which are set out in
Schedule III shall, subject to the restrictions and modifications
specified therein, apply–
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh
or Jaina, on or after the first day of September, 1870, within the
territories which at the said date were subject to the Lieutenant-
Governor of Bengal or within the local limits of the ordinary original civil
jurisdiction of the High Courts of Judicature at Madras and Bombay;
and
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W.P.No.3325 of 2020 & batch
(b) to all such wills and codicils made outside those territories
and limits so far as relates to immoveable property situate within
those territories or limits, 2[and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina on or after the first day of January, 1927, to which those
provisions are not applied by clauses (a) and (b):]
Provided that marriage shall not revoke any such will or codicil.
Section 63. Execution of unprivileged wills.
Every testator, not being a soldier employed in an expedition or
engaged in actual warfare, 1[or an airman so employed or engaged,] or
a mariner at sea, shall execute his will according to the following rules:–
(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 of 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.
Any Will has to be proved, in accordance with the provisions of Section
68 of the Evidence Act. This provision reads as follows:
45
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W.P.No.3325 of 2020 & batch“S. 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.”
27. The erstwhile High Court of Andhra Pradesh, in Sri Gajanan
Stores v. Shailaja Khadilkar, 24 had set out the manner in which a Will has to be
proved and the requirements of a valid Will, in terms of attestation , in the following
terms, in this regard:
34. The rule is that Section 68 is mandatory and cannot be relaxed
except under the circumstances provided for in the Act itself. A
document, which is required to be attested compulsorily by the
attesting witness, is required to be proved in compliance with the
procedure contemplated in Section 68 of the Evidence Act. It was
held that proof by attesting witnesses of not merely the execution but
also the attestation by two witnesses is necessary under the section.
The section no doubt speaks of proving its execution; but under
Section 59 of the T.P. Act, the actual execution must be seen and
attested by at least two witnesses. „Attestation‟ and „Execution‟ are
different acts one following the other. In the case of documents
whose attestation is hot compulsory, proof of execution under Section
67 is enough (ante); but in the case of documents required by law to
be attested, e.g., Will mortgage, gift etc, „execution‟ must include both
execution and attestation as without proof of the latter such
documents are not legally valid. In these cases there can be no valid
execution without due attestation and if due attestation is not also
proved, the fact of execution is of no avail. It has, therefore, been
held in numerous cases that in the case of documents, which are
compulsorily attestable, execution means something more than mere
signing. It includes delivery and signing in the presence of witnesses,
2012 SCC OnLine AP 778 : (2012) 4 ALD 732 at page 742
24
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or on personal acknowledgment of execution by executants. It
includes the whole series of acts or formalities which are necessary
to give the document validity.
28. The requirement of these provisions is that every Will should be
attested by at least two witnesses and at least one witness should be
produced before the Court to state that the executor of the Will had either
signed the Will in front of at least two attestors after which the attestors had
also affixed their signatures or that the executor of the Will informed at least
two attestors, that he had signed the Will earlier, and required the attestors to
affix their signatures, which was done, on that request. In the present Case,
D.W.4 states that the Will, dated 05.04.1999, had been executed by Dr.
Prasad, in the house of D.W.4, in Georgia, in front of himself, Sri K.R.K.
Prasad, who was the second witness, to the Will and a public notary, after
which they had all signed as witnesses to the Will. This Will was marked as
Ex. B12. Similarly, D.W.4 stated that Dr. Prasad had executed another Will, on
17.04.1999, in the hospital, in the presence of Dr. Amaraneni Swarajya, D.W.4
and the public notary who had all signed the Will, after Dr. Prasad, as
attestors of the Will. This Will was marked as Ex. B19.
29. It is the clear statement of D.W.4, that Dr. Prasad had initially
executed a Will, on 05.04.1999, in his presence, and in the presence of the
other witness and a public notary and that he, the other witness and the public
notary, had attested this Will. D.W.4 also stated that Dr. Prasad had executed
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W.P.No.3325 of 2020 & batch
another Will, on 17.04.1999, which was also attested in a similar manner.
DW.4, was a practicing doctor, in the United States of America, who had
acquaintance and friendship with Dr. Prasad from 1972, when they were
studying in Guntur Medical College This friendship had been renewed, from
1991, when they had participated in a TANA meeting in the United States of
America. The fact that Dr. Prasad had initially stayed at the house of D.W.4, in
Georgia, before he was admitted to a hospital in Georgia State, would clearly
show the friendship between D.W.4 and Dr. Prasad. The evidence of D.W.4
has not been shaken in cross examination. D.W. 4, in his affidavit in chief
examination, had given the details of the positions held by D.W.4, in various
hospitals and organisations, in the United States of America. These
statements have not been disputed. In fact, Smt. Padmaja, in the course of
her cross examination, had admitted that D.W.4 was a highly respected
doctor, in TANA circles. Looking at the background of D.W.4 as well as the
various positions he had held, this Court does not find any reason, to
disbelieve the evidence of D.W.4
30. The evidence of D.W.4 was sought to be discredited on the
ground that he had identified the signature on Ex.A6, which was a certified
copy of the Will, executed by Dr. Prasad, in relation to his properties in the
United States of America, as the signature of Dr. Prasad, even though the
said signature did not belong to Dr. Prasad. A closer look at the evidence, of
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W.P.No.3325 of 2020 & batch
D.W.4, would read otherwise. The relevant part of the cross examination is as
follows:
“I do not know about Ex.A6; and except in two occasions I have
not seen the signature of Leela Rama Krishna Prasad. Witness
after gone through Ex A6, states that signature on Ex A6 might
belongs to Ramakrishna Prasad. It is not true to suggest that I
am deposing falsely and signature on Ex. A6 is belongs to
Ramakrishna prasad and signatures on Ex. B18 and B19 are not
belongs to Ramakrishna Prasad.”
In the above deposition, D.W. 4 had stated that he had seen the
signature of Dr. Prasad, only twice. When confronted with Ex.A6 he had
stated that it might belong to Dr. Prasad. Such a statement is not a clear
admission that the signature on Ex. A6 was the signature of Dr. Prasad. His
statement, in the chief examination, that these two Wills, were signed by Dr.
Prasad, is on the basis of having been present, when Dr. Prasad put his
signature on the Wills. This Court cannot draw a conclusion that the evidence
of D.W. 4 has to be discarded on this ground.
31. The trial Court, took the view that there was some confusion as to
whether D.W.4 was a friend of Dr. Prasad or a colleague of Dr. Prasad and
had held that the evidence of D.W.4 cannot be accepted. We do not agree
with this line of reasoning, given by the trial Court and are of the view that the
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W.P.No.3325 of 2020 & batch
evidence of D.W.4 is believable, especially in view of the fact that P.W.4 is
totally unrelated to the family and had acted as an attestor on account of his
friendship with Dr. Prasad.
32. Another attempt has been made to discredit the evidence of
D.W.4 by pointing out that, DW4 had admitted that the affidavit in lieu of his
chief examination, filed by D.W.4 was initially drafted by Sri K.R.K. Prasad,
one of the trustees, under the Will of 17.04.1999. This fact, in the opinion of
this Court, would not make any difference to the credibility of D.W.4. It must
be remembered that D.W.4 had come down from U.S.A only for the purposes
of giving evidence in the case and had to suspend his practice, for the trip to
India. D.W.4 would have no knowledge of the proceedings in the suit and
would have made his arrangements to come down to India, only upon being
informed by the defendants, in the suit. In such circumstances, we do not find
any reason to disbelieve D.W.4, merely because he took the assistance of Sri
K.R.K. Prasad for drafting the affidavit.
33. An objection was raised that there is no pleading regarding the
Wills. In the absence of such pleadings, the said Wills cannot be looked into.
This contention does not appear to be correct, in view of the pleadings of the
defendants. In the Written statement, filed by the defendants, it is stated, in
paragraph 5, that Dr. Prasad had executed a Will, constituting a trust with
regard to the properties in India and that Smt. Padmaja, in her notice of
11.01.2002, had tacitly admitted this fact. It was also stated that Smt.
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W.P.No.3325 of 2020 & batch
Padmaja, being aware of the Will, had also implemented the terms of the Will.
In paragraphs 6, 10 and 12, of the Written statement, the allegation, of Smt.
Padmaja, that Dr. Prasad had been heavily sedated and drugged and was not
in a sound disposing mind was denied and it was asserted that Dr. Prasad
had executed the Wills, while in control of his faculties. There are further
references to the Will, in various places of the said written statement.
34. Sri M.R.S. Srinivas, would contend that the non examination of
Sri K.R.K. Murthy, is fatal to the case of the proponents of the Will and relies
upon the judgment of the Hon‟ble Supreme Court in Vidhyadhar vs.
Manikrao and Another 25 . In this case, the Hon‟ble Supreme Court, while
considering the admissibility of certain pleas, by the defendant to the suit,
when he had not chosen to enter the witness box, had held as follows:
17. Where a party to the suit does not appear in the witness-box and
states his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the case
set up by him is not correct as has been held in a series of decisions
passed by various High Courts and the Privy Council beginning from
the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927
PC 230 : 32 CWN 119] . This was followed by the Lahore High Court
in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and
the Bombay High Court in MartandPandharinath
Chaudhari v. RadhabaiKrishnarao Deshmukh [AIR 1931 Bom 97 : 32
Bom LR 924] . The Madhya Pradesh High Court in GullaKharagjit
Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970
MPLJ 586] also followed the Privy Council decision in Sardar
Gurbakhsh Singh case [AIR 1927 PC 230 : 32 CWN 119] . The
25
AIR 1999 SC 1441: (1999) 3 SCC 573
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Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All
29] held that if a party abstains from entering the witness-box, it
would give rise to an adverse inference against him. Similarly, a
Division Bench of the Punjab and Haryana High Court in Bhagwan
Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under
Section 114 of the Evidence Act, 1872 against a party who did not
enter the witness-box.
As contended by Sri M. R. S. Srinivas, himself, the Will dated 05.04.199
was superseded by the Will dated 17.04.1999. The Wills would have to be
proved by examining, at least one attesting witness. The two attesting
witnesses, of the Will, dated 17.04.1999, were Dr.Amaraneni Swarajya and
D.W.4. As D.W. 4 has been examined, the requirements of Section 68 of the
Evidence Act, are complied. Further, the Will has also been propounded by Sri
Hemanth Kumar, who is defendant No.2 in the suit and he had examined
himself as D.W. No.1 and spoke about the Wills and identified the signature of
Dr. Prasad, on the Wills. The non examination of Sri K.R.K. Murthy, would not
mean that the Will, dated 17.04.1999, has not been proved.
35. All the requirements, of Section 68 of the Evidence Act, have
been met, in view of the evidence of D.W.4, who has deposed that the Wills of
both 05.04.199 and 17.04.1999 had been signed by Dr. Prasad, in the
presence of two witnesses and a public notary and that the witnesses and the
public notary had, thereafter, signed the Wills as witnesses.
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W.P.No.3325 of 2020 & batch
ISSUE NO. 1 (B):
“Whether there are any suspicious circumstances, relating to the Wills,
which would render the Wills invalid”?
36. Sri M.R.S. Srinivas would contend that the Will, of 17.04.1999,
cannot be believed and would have to be discarded, on account of the various
suspicious circumstances, surrounding the said Will. The said, suspicious
circumstances, would include:
A. Dr. Prasad, due to the pain medication and sedatives, being
administered to him, was not in a sound and disposing mind, to execute the
Wills.
B. The chain of custody, of the Wills of 05.04.1999 and 17.04.1999, is
highly doubtful and the Wills have to be discarded.
C. There is no identification of the scribe to the Wills and no details as
to how the Wills came to be scribed. Consequently, the Wills should be
discarded.
D. The difference in the admitted signature of Dr. Prasad, in Ex. B1
partnership deed, dated 13.01.1997 and the signatures of Dr. Prasad on the
disputed Wills are sufficient to non suit the proponents of the Wills.
E. The attestation of the Indian Consulate in San Francisco, when the
Wills reached India in April 1999, casts sufficient doubt as to the custody of
the Wills and whether they were created subsequently.
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W.P.No.3325 of 2020 & batchA. The first circumstance, which has to be looked into is whether,
Dr. Prasad was in a sound and disposing mind, when he executed the
Wills of 05.04.1999 and 17.04.1999?
37. Sri M.R.S. Srinivas had contended that Dr. Prasad, was in no
condition to execute the Will, of 05.04.1999, or the Will, of 17.04.1999, on
account of the medication being administered to Dr. Prasad. Apart from this, it
was contended that Dr. Prasad had suffered a heart attack, on 05.04.1999, on
account of which he could not have executed any Will on 05.04.1999. A
perusal of the cross examination of D.W.4 would show that Dr. Prasad had
executed the Will, on 05.04.1999, in the afternoon, in the house of D.W.4. Dr.
Prasad was admitted to the hospital, on 05.04.1999, as per Ex.A7, only in the
evening on account of his complaint of chest pain etc. This can only mean that
Dr. Prasad was not suffering from any cardiac complications at the time when
he had executed the Will and it is only thereafter that he required
hospitalization.
38. Ex.A.7, is the medical summary of the treatment given to Dr.
Prasad from 05.04.1999 to 19.04.1999. Sri O. Manohar Reddy, the learned
Senior Counsel appearing for the trust, drew the attention of this Court to
various notations in Ex.A.7. These notations indicate that Dr. Prasad was
participating in the decisions about his treatment. Further, it is the evidence of
Smt. Padmaja herself that Dr. Prasad showed signs of improvement and was
on the verge of discharge from the hospital, on 18.09.1999. The notations, in
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Ex.A7, were that, Dr. Prasad was improving, on 17th and 18th of April.
However, he had subsequently suffered a cardiac arrest on 19.04.1999 and
passed away. In view of the admission of Smt. Padmaja that Dr. Prasad had
been recovering and the doctors, treating Dr. Prasad, had come to a
conclusion that he could be discharged, on 18.04.1999, can only mean that on
17.04.1999, Dr. Prasad, was in a condition to make his own decisions.
39. Smt. Padmaja had examined P.W.2, who is said to be a forensic
specialist. P.W.2, on the basis of Ex.A.7, states that the pain killers and
sedations, prescribed for Dr. Prasad, in Ex.A7, makes it very clear that he
would not be in a mental state where he would be able to think clearly or
execute a Will. However, the notations in Ex.A7 would show that the doctors
were not inclined to administer pain killers to Dr. Prasad on the ground that his
creatine levels were on the higher side. In the circumstances, the evidence of
P.W.2, would not be sufficient to hold that Dr. Prasad was not in a sound and
disposing state of mind.
B. The chain of custody, of the Wills. Of 05.04.1999 and
17.04.1999, is highly doubtful and the Wills have to be discarded.
E. The attestation of the Indian Consulate in San Francisco, when
the Wills reached India in April 1999, casts sufficient doubt as to the
custody of the Wills and whether they were created subsequently?
40. Both these issues, can be taken together. The first time, the
execution of the Wills, comes up, in the exhibits marked before this Court,
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isEx.B.6, which is said to have been signed by Smt. Padmaja, in front of a
Notary, on 31.01.2000. In this affidavit, Smt. Padmaja acknowledged that her
husband, Dr. Prasad, had executed a Will dated 17.04.1999, which was
attested by a Public Notary as well as the Consulate General of India, in San
Francisco. The Notary, who had attested the signatures of Smt. Padmaja, on
Ex.B.6, was examined as D.W.2. In his chief affidavit, D.W.2, who was a
practicing advocate and Notary, at Vijayawada, had stated that Smt. Padmaja
had signed Ex.B.6 affidavit, in his presence, after he had read over the
contents of the affidavit to Smt. Padmaja, and that he had, thereafter, attested
the affidavit and affixed notary stamps. The cross examination of D.W.2, by
the learned counsel of Smt. Padmaja, does not reveal any admission which
raises doubts about the evidence of D.W.2. Smt. Padmaja, does not dispute
her signature on Ex.B.6. Smt. Padmaja, in the course of her cross
examination, was confronted with Ex.B.6 affidavit, admitted her signature on
the affidavit, but stated that she had signed a blank paper which had been
used to fill up the contents of the affidavit later. This statement does not
appear to be believable. Smt. Padmaja, after having decided to look after her
interests, had got issued a notice, dated 11.01.2002, to Sri Hemanth Kumar.
In this notice, Smt. Padmaja only stated that her signature had been obtained
on a typed piece of paper, for creating a power of attorney, in favour of Sri
Hemanth Kumar, in relation to the Firm, M/s Muppavarapu Chowdary Builders
and Real Estate Developers. There is no mention of her signatures being
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taken, on blank papers. It is hard to believe that a person who has decided to
get a legal notice issued, as a preliminary to litigation, would not mention that
the noticee was in possession of her blank signed sheets of paper and that
they should be returned to her.
41. The next written reference, on the existence of the Wills or
otherwise, is the legal notice, dated 11.01.2002, issued on behalf of Smt.
Padmaja. The allegations in the notice, dated 11.01.2002, are as follows:
“Before the death of our client‟s husband his close relations had
taken undue advantage of the grief and helplessness of our client
and got up some documents and gave out that as the said
deceased Prasad had not got any children even out of the second
marriage with our client he had created trusts for his estate. Our
bereaved client, was made to come over to India for the sake of
performing the obsequies i.e., customary, funeral ceremonies.”
“But you are not providing her even a copy of the will or wills
executed by her husband, any deed of trust or any other documents
executed by him in favour of yourself or others, including the original
power of attorney.”
“So you are hereby called upon to treat this notice as most urgent,
furnish the copies of the will or wills, trust deed, the partnership
deed, Form „A‟ certificate of the firm with the names and shares of
other partners, the balance……..”
42. In response to this notice, Sri Hemanth Kumar, got a reply issued,
on 17.01.2002. In this reply, the following statements were made:
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W.P.No.3325 of 2020 & batch“After the death of Dr. Prasad, your client visited India during April,
1999 and served a copy of late Prasad‟s Will on my client and
stayed in India till February, 2000.”
“Your client, being well educated, and going round the countries and
constantly in touch with her legal counsels at U.S.A and India,
cannot now plead ignorance or innocence of the G.P.A. and Will of
late Dr. Prasad. At the time of registering the G.P.A. and partnership
deed, your client give an affidavit asserting the execution of a Will
by Dr. M.L.R.K. Prasad, she further stated that she was verified the
accounts of the partnership till 20-04-1999 and joined as partner
having Ten Ps. Share as per the terms of the Will.
“My client is not in possession of the Will or Wills, trust deed or any
other documents pertaining to late Dr.Prasad. Your client is alone in
possession of these documents, if any, as she last lived with late Dr.
Prasad.”
43. The exchange of these notices took place in January, 2002. No
reply was given by Smt. Padmaja to the statements in the reply notice of
17.01.2002. Thereafter, Smt. Padmaja filed O.S.No.69 of 2002, through her
mother, who was acting as her power general of attorney. This suit came to
be filed on 14.11.2002. In the plaint, Smt. Padmaja only states that the
allegations in the reply notice of 17.01.2002 are false allegations.
44. Smt. Padmaja was confronted with the Wills, dated 05.04.1999
and 17.04.1999, during her cross examination as P.W.1. She denied the
signatures of Dr. Prasad on these two Wills. Thereafter, the signatures on
these two Wills were marked, as Exs.B.11 and B.12, in the chief examination
of Sri Hemanth Kumar, who was examined as D.W.1. Sri Hemanth Kumar did
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not explain how he had got custody of the documents from Smt. Padmaja,
either in the written statement or in his chief examination. In the course of his
cross examination, Sri Hemanth Kumar stated that the originals were handed
over by Smt. Padmaja to his mother and thereafter his mother handed over
the originals to him in the last week of April, 1999.
45. The statement in the notice dated, 11.01.2002, issued on behalf
of Smt. Padmaja is that the copies of the Will or Wills executed by Dr. Prasad
were not being given to her. There was no assertion that Dr. Prasad had
never executed any such Will. In fact, the statement, in the legal notice, states
that close relatives of Dr. Prasad, taking undue advantage of the grief and
helplessness of Smt. Padmaja, had got some documents executed by Dr.
Prasad. Effectively, Smt. Padmaja appears to have taken the stand that there
were claims by the relatives of Dr. Prasad, that certain documents, were
executed by Dr. Prasad, disposing of his properties, in India, in favour of a
trust and that she did not have copies of such documents. The above facts
make it clear that Smt. Padmaja was aware of the execution of the Wills and
her statements in the legal notice, issued on her behalf, as well as her
evidence is consistent with this fact.
46. On the question of custody of the Will, and how it came into the
custody of the defendants, there is no evidence on behalf of Smt. Padmaja.
However, her stand is that she was not in custody of these Wills nor did she
handover the Wills to either Sri Hemanth Kumar or to the mother of Dr.
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Prasad. D.W. 4, in the course of his cross examination, had stated that the
Wills of 05.04.1999 and 17.04.1999, were handed over to Smt. Padmaja. It is
the evidence of Sri Hemanth Kumar, in his cross examination, as D.W.2, that
Smt. Padmaja had handed over the Wills, to the mother of Dr. Prasad and Sri
Hemanth Kumar, in April, 1999 and subsequently his mother handed over the
Wills to him in the last week of April, 1999. However, D.W.1, in his reply notice
of January, 2002, stated that Smt. Padmaja had given him copies of the Wills
but the originals were not in his possession. This statement in the notice
contradicts his statement in the cross examination that he was already in
possession of the originals of the Wills, dated 05.04.1999 and 17.04.1999, by
the last week of April, 1999.
47. Another factor, which draws the attention of this Court, is the
attestation by the Consulate General in San Francisco. There is no date of
attestation attached to the attestation of the Wills. These Wills were executed
on 05.04.1999 and 17.04.1999, during the period that Dr. Prasad was in
hospital in Georgia. Thereafter, according to the version of the defendants, the
Wills were brought by the Smt. Padmaja to India by 25.04.1999 and handed
over to the mother of Dr. Prasad. The chain of events makes it clear that there
was no possibility of Wills being taken to San Francisco for attestation.
Consequently, the attestation could have happened only by the Wills being
sent back from India to the U.S.A and the attestation was obtained on these
Wills in the Consulate in San Francisco. There have been no submissions
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made, on this aspect, by any of the parties before this Court. Another
interpretation could be that the Wills were in the custody of the relatives of Dr.
Prasad who had subsequently got the said Wills attested in the Indian
Consulate in San Francisco and thereafter forwarded the same to India. There
is ambiguity about the manner in which the Wills came into the hands of Sri
Hemanth Kumar.
48. At this stage, it is necessary to consider the credibility of the
evidence of Sri Hemanth Kumar, who was examined as D.W.1. As pointed out
by Sri M.R.S. Srinivas, the evidence of Sri Hemanth Kumar is riddled with
inconsistencies. His further conduct, in suppressing the pendency of this
appeal, before the Court, in Eluru, in O.S.No. 445 and 446 of 2019 and the
execution of the Sale deed, which is the subject matter of the Writ petition filed
by the trust, in favour of Sri Koteswara Rao, does not inspire confidence in the
evidence of Sri Hemanth Kumar.
49. However, this lack of credibility, of Sri Hemanth Kumar, would
have to be balanced with the manner in which Smt. Padmaja has prosecuted
this case. She gets a notice issued on 11.01.2002, to Sri Hemanth Kumar,
asking for copies of the Will, the partnership deed, and other papers, after
stating that she had signed only on a typed power of attorney. She does not
make any statement about having signed any blank papers. The reply notice,
dated 17.01.2002, issued on behalf of Sri Hemanth Kumar, states that she
had signed a partnership deed, in February 2000 and a General Power of
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Attorney, on 30.01.2000 and also an affidavit, asserting the execution of the
Will, by Dr. Prasad. The conduct of any person, at that stage, would be to
deny the execution of any affidavit or partnership deed and state that these
documents were prepared on blank signed papers. However, Smt. Padmaja
did not send any such reply. Even in the plaint, there is no mention of Sri
Hemanth Kumar, having obtained the signatures of Smt. Padmaja, on any
blank papers. It is only when she is confronted with the Deed of partnership,
dated 20.04.1999, marked as Ex.B2, that she takes the stand that her
signatures, obtained on blank papers, were used to create Ex.B2. This
document, contains, according to her evidence, about 15 signatures.
Similarly, she admits her signature on Ex. B3, which is the printed Form-V,
which has to be submitted to the Registrar of Firms. She again states that this
was obtained on a blank paper. Exhibit B3, is a printed form. She stated that
she had only signed blank stamp papers and blank sheets. There is no
mention of signing blank printed forms. These statements, even on their face
value, are not believable. The placement of the signatures, of Smt. Padmaja,
on Ex.B2, makes it very hard to accept that the partnership deed was
prepared using signatures of Smt. Padmaja, on blank signed papers. It is true
that the said document, which is dated 20.04.1999, could not have been
signed by Smt. Padmaja, on that day, as she was not in India, on that day.
This is a document which has been back dated. This court would have to
consider the consequence of this back dating. The back dating would not take
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away the knowledge of the changes in the partnership firm, or the execution of
the Wills, if Smt. Padmaja had signed the document after it had been
prepared. This court is of the opinion that Smt. Padmaja had signed the typed
partnership deed and not blank papers which have been subsequently used to
create the partnership deed.
50. Smt. Padmaja, in her cross examination, took the stand that the
power of attorney, executed by her, in favour of Sri Hemanth Kumar, in
relation to the firm, and marked as Ex. B4, was created on blank papers
signed by her. However, she subsequently states, in the cross examination,
that she had appeared before the sub registrar to present this document.
These statements cannot stand together. It is obvious that, Smt. Padmaja,
had signed the completed affidavit, marked as Ex.B6, on 30.01.2000 and it
was not a blank signed paper. The Notary, before whom she had signed
Ex.B6 was examined as D.W.2 and had deposed that she had signed Ex.B6
before him.
51. Taking into account the depositions of both Sri Hemanth Kumar
and Smt. Padmaja, it must be held that even if the evidence of Sri Hemanth
Kumar is ignored, the affidavit signed by Smt. Padmaja, marked as Ex. B6 is
sufficient to hold that she was aware of the execution of the Will, dated
17.04.1999, and that an attestation, of that Will, had been obtained from the
consulate in San Francisco. The guidelines set out in the above judgments
regarding the consideration of the surrounding circumstances, requires this
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court to satisfy it‟s judicial conscience, that the surrounding circumstances do
not affect the overall acceptability of the Will, as being executed by the
testator and that the Will reflects the wishes of the testator. This court is of the
opinion that both Sri M. Hemant Kumar and Smt. Padmaja, had sought to
portray facts, which were convenient for them and this resulted in changing
stances by both of them. This requires this court to take an overall view of the
matter, to come to a conclusion as to whether the Wills produced in court were
actually executed by Dr. Prasad and reflect his wishes. We are convinced that
these Wills were executed by Dr. Prasad and reflect his wishes.
C. There is no identification of the scribe to the Wills and no
details as to how the Wills came to be scribed. Consequently, the Wills
should be discarded.
52. Sri M.R.S. Srinivasa had also contended that the Wills cannot be
believed as there is no information regarding the scribe of the Will or where
and when the Will had been drafted. It is clear from the evidence given by the
witnesses and more specifically Smt. Padmaja, that Dr. Prasad, kept his
affairs confidential and was not discussing all the issues even with Smt.
Padmaja. Even D.W.4 states that Dr. Prasad, except confiding that he was
wishing to execute a Will, regarding his properties in India, was not
forthcoming about any details. In the circumstances, pleadings regarding
these details would not be available. A comparison of the Will, dated
05.04.1999 and the Will dated 17.04.1999 would show that the Wills are
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identical except to the extent of the change in the names of trustees and the
additional bequest made in favour of one sister namely defendant No.6. This
Court can only conclude that Dr. Prasad had got the Will, dated 05.04.1999,
drafted confidentially, and thereafter got the changes in the Will, which were
minimal, made after he was informed of the demise of Sri V. Natarajeswara
Rao, who was named as one of the trustees, on 12.04.1999. This issue does
not cast any suspicion about the preparation or execution of the Will, dated
17.04.1999.
D. The difference in the admitted signature of Dr. Prasad, in Ex.
B1 partnership deed, dated 13.01.1997 and the signatures of Dr. Prasad
on the disputed Wills are sufficient to non suit the proponents of the
Wills.
53. Smt. Padmaja, admitted the signature of Dr. Prasad, on Ex.B1.
This exhibit is the Partnership Deed, executed by Dr. Prasad, on 13.01.1997,
which is about two years, before the disputed signatures B11 and B18, in the
Wills marked as B12 and B19. No steps were taken, by either side, to get
some expert opinion for comparison of the signatures on Ex. B1, with the
signatures Ex. B11 and B18. However, this Court can also undertake this
task, under Section 73 of the Evidence Act. The Hon‟ble Supreme Court, in
the judgment , cited by Sri M.R.S. Srinivas, in Ajit Savant Majagvai v. State
of Karnataka, 26 had held as follows:
26
(1997) 7 SCC 110 : 1997 SCC OnLine SC 122 at page 121
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36. The original records were also placed before us and we
have perused those records. Since the learned counsel for the
appellant contended that the appellant had not stayed in
“Ashoka Lodge”, we looked into the “Register of Lodgers”. It
contains the relevant entry against which the signature of the
appellant also appears. His signature also appears on the
“vakalatnama” filed by him in this appeal. In the presence of the
learned counsel for the parties, we compared the signature of
the appellant on the “vakalatnama” with the signature in the
“Register of Lodgers”. A mere look at the signatures was
enough to indicate the similarity which was so apparent that it
required no expert evidence. This comparison was done by us
having regard to the provisions of Section 73 of the Evidence
Act, 1872 which provides as under:
“73. Comparison of signature, writing or seal with others
admitted or proved.–In order to ascertain whether a signature,
writing or seal is that of the person by whom it purports to have
been written or made, any signature, writing or seal admitted or
proved to the satisfaction of the court to have been written or
made by that person may be compared with the one which is to
be proved, although that signature, writing or seal has not been
produced or proved for any other purpose.
The court may direct any person present in court to write any
words or figures for the purpose of enabling the court to
compare the words or figures so written with any words or
figures alleged to have been written by such person.”
37. This section consists of two parts. While the first part
provides for comparison of signature, finger impression, writing
etc. allegedly written or made by a person with signature or
writing etc. admitted or proved to the satisfaction of the Court to
have been written by the same person, the second part
empowers the Court to direct any person including an accused,
present in court, to give his specimen writing or fingerprints for
the purpose of enabling the Court to compare it with the writing
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or signature allegedly made by that person. The section does
not specify by whom the comparison shall be made. However,
looking to the other provisions of the Act, it is clear that such
comparison may either be made by a handwriting expert under
Section 45 or by anyone familiar with the handwriting of the
person concerned as provided by Section 47 or by the Court
itself.
38. As a matter of extreme caution and judicial sobriety, the
Court should not normally take upon itself the responsibility of
comparing the disputed signature with that of the admitted
signature or handwriting and in the event of the slightest doubt,
leave the matter to the wisdom of experts. But this does not
mean that the Court has not the power to compare the disputed
signature with the admitted signature as this power is clearly
available under Section 73 of the Act. [See: State (Delhi
Admn.) v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 :
AIR 1979 SC 14] .]
54. We have compared the signatures marked as Ex. B11 and B18
and the admitted signature of Dr. Prasad, on Ex.B1 the signatures marked as
Ex.B11 and B18 do not show any hesitancy. They also appear to be similar to
the signatures in Ex.B1.
This issue would have to be held in favour of the appellants, in A. S. No.
645 and A. S. No. 707 of 2014.
ISSUE NO.1 (C)
E. Whether the Wills executed in the United States of America
can be produced in the Court, in India, without obtaining probate of
such Wills in the United States of America?
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55. A contention has been raised that the provisions of section 213
and 228 of the Indian Succession Act require any Will executed in the U.S.A,
or any foreign country, to be proved and probated in the Court of competent
jurisdiction within that country before the Will can be produced before a Court
in India. Section 213 and 228 of the Indian Succession Act read as follows:
213. Right as executor or legatee when established.–
(1) No right as executor or legatee can be established in any Court
of Justice, unless a Court of competent jurisdiction in India has
granted probate of the will under which the right is claimed, or has
granted letters of administration with the will or with a copy of an
authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by
Muhammadans [or Indian Christians], and shall only apply–
(i) in the case of wills made by any Hindu, Buddhist, Sikh or
Jaina where such wills are of the classes specified in clauses
(a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the
commencement of the Indian Succession (Amendment) Act,
1962 (16 of 1962), where such wills are made within the local
limits of the [ordinary-original civil jurisdiction] of the High
Courts at Calcutta, Madras and Bombay, and where such wills
are made outside those limits, in so far as they relate to
immovable property situate within those limits.
Section 228. Administration, with copy annexed, of
authenticated copy of will proved abroad.
When a will has been proved and deposited in a Court of
competent jurisdiction situated beyond the limits of the State,
whether within or beyond the limits of 1[India], and a properly
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authenticated copy of the will is produced, letters of
administration may be granted with a copy of such copy
annexed.
56. Section 213 stipulates that no Will can be relied upon to make
any claim over any property, unless such a Will has been granted probate or
letters of administration under Section 213 of the Indian Succession Act. In
the normal course, a Will is proved, by producing the original of the Will, and
proving it in the manner set out in Section 68 of the Evidence Act. In certain
situations, the requirement to produce the original can be waived, if a certified
copy of the Will is produced, before the Court. Section 228 operates in one
such situation. It states that, when a Will has already been proved and
deposited in any court outside the State or even outside the Country, a
certified copy of the said Will lodged with such a court can be produced,
instead of the original Will and letters of administration can be granted,
without insisting on the original being produced. This provision cannot be
understood or read to mean that no Will can be proved in Andhra Pradesh,
unless it is already proved in the court having jurisdiction, over the area,
where the Will had been executed.
57. Sri M.R.S. Srinivas, relies upon the judgment of the Hon‟ble High
Court of Karnataka, in 2016 SCC ONLINE KAR 3997 in Re: Parameshwaran
Subramani, to contend the converse. In this case, the testatrix, who was
residing in Australia, and her brother, together owned a property in Bengaluru.
Both the testatrix, as well as her brother, had executed separate Wills,
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bequeathing their share in the property, to the beneficiaries, named in the
respective Wills. The testatrix, had also named her grandson as the executor
for her Will. Initially, the Supreme Court of Victoria, Australia had granted
probate of the Will executed by the Testatrix. Subsequently, the executor of
the Will had given a power of attorney to a person, in India, who moved a
petition, under section 228, for grant of ancillary letter of Administration. The
Hon‟ble High Court held that such letters of administration can be given in
favour of the petitioner, in India, in the place of the absentee executor. This
court has not found any observation, in the judgment of the Hon‟ble High
Court of Karnataka, to the effect that letters of administration cannot be
granted in a Will executed abroad, unless it is proved in a court of competent
jurisdiction, in the country where it is executed.
58. This Court, may also add that this provision has been set out, for
a practical reason. Once a Will is probated in a foreign Court, the said foreign
Court would retain custody of the Will. In such circumstances, parties who
seek to implement the Will, in relation to properties in India, would be without
a remedy for probate of the Will, as the original would not be available for
production in the Court in India. The said provision does not in any manner
prohibit production of a Will, executed outside India, before a Court in India
without obtaining probate of the Will in a competent Court in the foreign
country.
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59. Another aspect of this issue also requires to be considered. The
requirement of obtaining probate and whether a Will could be relied upon for
claiming rights, under that Will, in a regular suit, came to be considered by the
erstwhile High Court of Andhra Pradesh. The following extracts of two of
these judgments would be sufficient to hold that no probate or letters of
administration need to be obtained, for relying upon a Will, if such Will is
otherwise proved, in accordance with Section 63, for properties situated in
Andhra Pradesh.
Gangavath Lalu v. GangavathiTulsi, 2001 SCC OnLine AP 130 :
(2001) 1 AP LJ 129 : (2001) 3 ICC 228 : AIR 2001 AP 326 : (2001) 2
ALD 379 : (2001) 2 ALT 437 : (2001) 1 An WR 52 at page 132
12. A Division Bench of this Court in A.S. Murthy v. D.V.S.S.
Murthy (2) (1979 (2) ALT 347) after referring to clause (4) of section 57
and section 213 (1) and (2) of the Act and after elaborate consideration
of the matter held in categorical terms that section 213 (2) excludes
wills executed by persons residing in the State of Andhra Pradesh in
respect of properties situated in Andhra Pradesh from the prohibition
contained in section 213(1) of the Act. It is also held by the Court that
even without probate or letters of administration the legatees are
entitled to establish their right under the wills. The only other wills
executed by Hindus in which the prohibition contained in section 213
(1) of the Act applies, are the wills though made outside the territories
referred to in clause (4) of section 57 relate to immovable properties
situated within those territories or limits.
13. In M. Narayana v. M. Suryakantam (3) 1997 (5) ALT 459, a
learned single Judge of this Court after referring to the judgment of
the Supreme Court in T.V. Narayana’s case (1 supra) and the
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observed that a plain reading of section 213(1) would definitely
indicate that it prohibits any executor or legate under will from
establishing his or her right under the will in any Court of justice
without obtaining a probate of the will or letters of administration.
But, it is clear from subsection (2) of section 213 of the Act that
section 213 of the Act would not at all apply to the wills made by
Mohammedans and shall apply only to the wills made by any Hindu,
Buddhist, Sikh or Jain where such wills are ofclasses specified in
clauses (a) and (b) of section 57 of the Act. The learned judge
observed:
“It is unfortunate that none of the above statutory provisions which
are of utmost relevance have been brought to the notice of the
Supreme Court in T.V. Venkatanarayana’s case (1 supra).
Moreover, in that case there was no occasion for the Supreme Court
to consider, directly or indirectly, the question whether the
prohibition contained in subsection (1) of section 213 of the Act
would apply to the wills executed by Hindus residing in the State of
Andhra Pradesh in respect of properties situate in Andhra Pradesh.”
15. A plain reading of sections 213 (2) and 57 of the Act would
make it clear that whatever prohibition contained in sub-section (1)
of section 213 has no application in respect of wills executed by
Hindus within the State of Andhra Pradesh in respect of immovable
properties situated within the territorial limits of the State of Andhra
Pradesh. It is not necessary to obtain probate of a will or letters of
administration. The wills upon which reliance is sought to be placed
can always be permitted to be proved in any civil proceeding.
InkolluSasikala v. Inkollu Venkata Murthy, 2004 SCC OnLine AP
586 : (2004) 5 ALD 449 : (2005) 26 AIC 784 : (2004) 6 ALT 18 :
(2005) 1 HLR 9 at page 452
9. A reading of sub-section (2) clearly discloses that Courts, outside
the limits of the towns of Calcutta, Madras and Bombay, do not
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of administration unless the State Government confers such power
by a notification published in the Official Gazette. It is not in dispute
that such a notification has not been issued by the Government of
Andhra Pradesh. This question was specifically dealt with by a
Division Bench of this Court in A.S. Murthy v. D.V.S.S. Murthy, 1979
(2) ALT 347 and it was held that the Courts in the State of Andhra
Pradesh do not have the power to grant probate. It is also beneficial
to refer to the judgment of this Court in Gangavath
Lalu v. GangavathiTulsi, 2001 (2) ALD 379 : 2001 (2) ALT 437, in
this regard, wherein, it was summed up as under.
“A plain reading of Sections 213(2) and 57 of the Act would make it
clear that whatever prohibition contained in sub-section (1) of
Section 213 has no application in respect of Wills executed by
Hindus within the State of Andhra Pradesh in respect of immovable
properties situated within the territorial limits of the State of Andhra
Pradesh. It is not necessary to obtain probate of a Will or letters of
administration. The Wills upon which reliance is sought to be placed
can always be permitted to be proved in any civil proceeding.”
10. Learned Counsel for the respondents attempted to persuade
this Court to sustain the jurisdiction of the Trial Court in receiving
the application by making reference to Sections 57 and 214 of the
Act. Section 57 of the Act is a general provision dealing with
testamentary succession. It mainly deals with the applicability of the
provisions set out in Schedule III of the Act, to a Will or codicil that
may be made by any Hindu, Buddhist, Sikh or Jain. It is in the form
of extension of the concept of testamentary successions to the
persons belonging to communities referred to above. To appreciate
the real purport of Section 214, it is necessary to refer to Section
213. The former deals with the Wills in general, and the latter, with
the succession to debts and securities. Section 213 of the Act
prescribes the procedure for establishing the rights arising out of a
Will in respect of the immovable properties (See K.
Laxminarayan v. V. Gopala Swami, AIR 1963 AP 438). Section 214
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of the Act deals with the rights in respect of the debts relatable to
such disposition. Section 213 clearly bars recognition of the rights in
respect of the immovable properties under a Will except on the
strength of a probate. It is not as if the persons residing outside the
limits of the cities of Calcutta, Madras and Bombay are without any
relief since the Courts in most of the other places are not conferred
with the jurisdiction to receive applications for grant of probate. The
validity of a Will or the rights flowing out of it can certainly constitute
the subject-matter of a suit and other related proceedings. The
section does not preclude the parties to reap the benefits under a
Will through other remedies (See Clarence Pais v. Union of India,
(2001) 4 SCC 325 : AIR 2001 SC 1151 and Arjun
Prasad v. Biteshwar Singh, AIR 1982 Patna 208).
ISSUE 1 (D): “Whether, the Wills meet the requirement of the
Convention on the conflict of laws relating to the form of testamentary
dispositions”?
59. The contention raised, in regard to this issue, is that no
testamentary Disposition, including Wills and other official document can be
produced, without the said document being certified, by way of attestation,
that the document has been executed by the concerned official. It is further
contended that the method of such certification is contained in the
“Convention on the Conflict of Laws” concluded on 05.10.1961, as India is a
signatory to the said convention. The relevant provisions of the Convention
are extracted herein below:
11. CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF
TESTAMENTARY DISPOSITIONS(Concluded 5 October 1961)
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W.P.No.3325 of 2020 & batchThe States signatory to the present Convention,
Desiring to establish common provisions on the conflicts of laws relating to the form
of testamentary dispositions,
Have resolved to conclude a Convention to this effect and have agreed upon the
following provisions:
A testamentary disposition shall be valid as regards form if its form complies with the
internal law:
a) of the place where the testator made it, or
b) of a nationality possessed by the testator, either at the time when he made the
disposition, or at the time of his death, or
c) of a place in which the testator had his domicile either at the time when he made the
disposition, or at the time of his death, or
d) of the place in which the testator had his habitual residence either at the time when
he made the disposition, or at the time of his death, or
e) so far as immovables are concerned, of the place where they are situated.
For the purposes of the present Convention, if a national law consists of a non-
unified system, the law to be applied shall be determined by the rules in force in that
system and, failing any such rules, by them most real connexion which the testator
had with any one of the various laws within that system.
The determination of whether or not the testator had his domicile in a particular place
shall be governed by the law of that place.
12CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF
TESTAMENTARY DISPOSITIONS
(Concluded 5 October 1961)
The States signatory to the present Convention,
Desiring to abolish the requirement of diplomatic or consular legalisation for foreign
public documents. Have resolved to conclude a Convention to this effect and have
agreed upon the following provisions:
The present Convention shall apply to public documents which have been executed
in the territory of one Contracting State and which have to be produced in the
territory of another Contracting State.
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W.P.No.3325 of 2020 & batchFor the purposes of the present Convention, the following are deemed to be public
documents:
a) documents emanating from an authority or an official connected with the
courts or tribunals of the State, including those emanating from a public
prosecutor, a clerk of a court or a process-server (“huissier de justice”);
b) administrative documents;
c) notarial acts;
d) official certificates which are placed on documents signed by persons in their
private capacity, such as official certificates recording the registration of a
document or the fact that it was in existence on a certain date and official and
notarial authentications of signatures.
However, the present Convention shall not apply.
a) to documents executed by diplomatic or consular agents;
b) to administrative documents dealing directly with commercial or customs
operations.
Each Contracting State shall exempt from legalisation documents to which the
present Convention applies and which have to be produced in its territory. For the
purposes of the present Convention, legalisation means only the formality by which
the diplomatic or consular agents of the country in which the document has to be
produced certify the authenticity of the signature, the capacity in which the person
signing the document has acted and, where appropriate, the identity of the seal or
stamp which it bears.
60. The first extract of the “Convention on the Conflicts of Laws
relating to the form of Testamentary Dispositions” states that any
Testamentary Disposition, would be valid, in terms of the form of such
Testamentary Disposition, if such disposition meets even one of the
requirements set out above. In the present case, the immoveable properties
are in India, Consequently, the Will executed by Dr. Prasad, in the United
States of America, would be valid in India, if the Form is in accordance with
the requirements of the Law in India. As there is no dispute that the form of
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the Will, dated 17.04.1999, is in accordance with the provisions of Indian Law,
the Will, of 17.04.1999, is valid, according to the said Convention. Apart from
this, there is no contention, by either side, that the form of the Will, of
17.04.1999, is not in accordance with American law either.
61. The Convention on the Conflicts of laws relating to the form of
Testamentary Dispositions recognises an earlier system where certain
documents executed in one country could not be produced in another country,
unless a consular agent, of the country, where the documents were to be
produced, legalised such documents, by certifying that the documents had
been signed by an official who was competent to sign and issue such
documents etc., the Convention has granted an exemption, for legalisation of
such documents, which have been enumerated in Article 1, in the second
extract. These Articles also do not bar the production of the Will, of
17.04.1999. Apart from this, the Will, of 17.04.1999, is a private Will, executed
by a private person. It would come within the ambit of the Convention because
it has been notarised and, for the purposes of the Convention, be treated as
an official document. However, the signature of the Public Notary is not
relevant to the case as D.W.4, one of the attesting witnesses, had deposed
about the execution of the Will. Viewed from either angle, the Convention
does not bar the production of the Will of 17.04.1999.
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ISSUE No.2. ” Whether, the trust, which is the appellant in A.S.No. 707 of
2014, has come into existence”?
62. This issue arises, in view of the contention that the trust itself is
not in existence and as such the Will of Dr. Prasad would have to fail. This
issue would also arise, in Part II, while dealing with the maintainability of the
writ petitions filed against the awards and the deeds of sale, executed
between Sri Hemanth Kumar, on one hand, and Sri Ch. Koteswara Rao and
Smt. M. Parvathi on the other hand. Accordingly this issue was considered, in
Part II of this judgment. In view of the findings therein, it is held that the Trust
has come into existence.
ISSUE No 3. “Whether, Dr. Prasad had passed away Intestate, entitling Smt.
Padmaja to a half share of the properties, of Dr. Prasad, in India or whether
the devolution of the estate of Dr. Prasad is to be according to the Will of
17.04.2019 “?
63. In view of the findings in the above issues, it is held that Dr.
Prasad had passed away, testate, as the Will executed by Dr. Prasad, on
17.04.1999, is a valid Will and the devolution of the properties of Dr. Prasad,
in India, would have to be in accordance with the Will of 17.04.1999.
64. Before parting with this part of the judgment, it would be
necessary to consider the judgment and decree of the trial court. The learned
trial judge, took up the central issue of proof of the Will. The learned trial judge
disbelieved the evidence of D.W. 4, and held that the Will was not proved. The
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learned Trial judge came to this conclusion on the basis of certain
discrepancies he found in the evidence of D.W.4. The learned Trial judge held
that D.W.4, had stated that Smt. Padmaja had stayed in Georgia, till the 11th
day ceremony of Dr. Prasad, who passed away on 19.4.1999, while she had
arrived in India on 25.4.1999 and D.W.4 had not explained this discrepancy
when he was confronted with the passport of Smt. Padmaja; there was no
contact between D.W.4 and Dr. Prasad for six years before the demise of Dr.
Prasad, and the claim of D.W.4, that he was a friend of Dr. Prasad cannot be
believed; D.W.4 stated , in his chief examination, that the Wills were drafted in
his presence, but stated in his cross examination that Dr. Prasad did not
dictate the Wills in his presence; DW 4 stated that his chief affidavit was
prepared after comparing the documents in court, but in cross examination
DW4 stated that he had not gone through the documents; Dw4‟s statement
that he had got Dr. Prasad admitted in hospital is not supported by any
document, etc.
65. The Trial Judge, may not have considered these alternatives , while
coming to his conclusions. The evidence of D.W.4, only states that Smt.
Padmaja was there till the 11th day ceremony. There is no statement that she
was there for 11 days after the demise of Dr. Prasad. Actually, there is no
cross examination of D.W.4 on this issue, to elicit that Smt. Padmaja had
stayed back for 11 days. The learned trial Judge, while holding that DW4 was
not a close friend of Dr.Prasad, did not consider the fact that Dr. Prasad and
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Smt. Padmaja, had stayed in the house of D.W.4, prior to the admission of Dr.
Prasad, in the hospital on 05.04.1999.
66. The circumstances and facts noticed by the trial court, would
raise doubts about the execution and custody of the Wills. However, these
circumstances cannot be viewed in isolation or with a magnifying glass. This
Court would have to take an overall view of the entire case and satisfy itself as
to whether the Wills are surrounded by such suspicious circumstances as to
reject the Wills. While the evidence of Sri M. Hemanth Kumar cannot be relied
upon, the evidence of Smt. Padmaja, also does not inspire confidence. The
facts as can be gleaned, from her cross examination, show that Smt. Padmaja
was aware that Dr. Prasad had executed Wills regarding his property in India.
Her execution of an Affidavit and Power of Attorney, in January 2000,
acknowledging the existence of the Wills, her silence for a few months and the
ambivalent manner in which her legal notice was sent, can only lead to the
inescapable conclusion that the Wills were executed by Dr. Prasad and that
she was aware of these Wills. In the light of these facts, we do not agree with
the view of the trial court that the Wills have to be rejected.
PART II
67. Sri Ch. Koteswara Rao, filed O.S.No. 445 of 2019, on 25.09.2019,
before the 1st Additional Junior Civil Judge, Eluru against Sri M. Hemanth
Kumar, in his individual capacity, on the ground that Sri Ch. Koteswara Rao,
was in possession of an extent of Ac.0.65 cents of land in R.S.No.143/5 of
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Thallagokavaram Village, West Godavari District, described as Item No.1 , in
the schedule to the suit, on the basis of a lease given to him by Sri M.
Hemanth Kumar and two separate pieces of land admeasuring Ac.1.50 cents
in R.S.No.45/1 of Tadigadapa, Vijayawada Rural and Ac.1.32 cents situated in
Kanuru of Vijayawada Rural, collectively described as Item No. 2 of the suit
schedule, on the basis of an agreement of sale dated 04.09.1997 and that Sri
Hemanth Kumar had tried to interfere with his possession over the land
described in Item No.1 of the suit schedule.
68. Smt. M. Parvathi filed O.S.No.446 of 2019 before the 1st Additional
Junior Civil Judge Court, Eluru against Sri M. Hemanth Kumar, in his
individual capacity, on the ground that Smt. M. Parvathi, was in possession of
an extent of Ac.0.61 cents of land in R.S.No.143/4 of Thallagokavaram
Village, West Godavari District, described as Item No.1 , in the schedule to the
suit, on the basis of a lease given to her by Sri M. Hemanth Kumar and two
separate pieces of land admeasuring Ac.1.05 cents in R.S.No.80/5 along with
the right to draw water from a Well in R.S.No.80/10 of Yenamalakuduru
Village, Vijayawada Rural Mandal is an extent of Ac.1.93 cents in
R.S.NO.45/1 of Yenamalakuduru Village, Vijayawada Rural Mandal, described
as item No. 2, of the suit schedule, on the basis of an agreement of sale,
dated 04.09.1997, and that Sri Hemanth Kumar had tried to interfere with her
possession over the land described in Item no.1 of the suit schedule.
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69. Sri Hemanth Kumar, who had already filed caveats, in both cases,
entered appearance, in both cases and filed his written statements, in both
cases. Thereafter, the parties to these suits are said to have compromised
and filed their terms of settlement which were recorded, by the Lok Adalat and
two separate awards, dated 21.01.2020, were passed in the cases. These
awards have been challenged by the trust, by way of writ petitions vide W.P
Nos.3325 and 3807 of 2020. Similarly, Smt. Padmaja challenged the awards,
by way of writ petitions vide WP Nos.1538 and 15403 of 2021. A Division
Bench of this Court, had granted suspension of the awards, in the writ
petitions, filed by the trust. As deeds of sale, vide document Nos.3567 & 3568,
dated 14.04.2023, had been executed and registered by Sri Hemanth Kumar,
in favour of Sri Ch.Koteswara Rao, the trust had filed W.P No.13966 of 2023
challenging the registration of the said deeds of sale. Apart from this, the trust
also moved a contempt case vide C.C No.5225 of 2023 against Sri Hemanth
Kumar on the ground of violation of the directions of this Court.
70. In a parallel proceeding, an enquiry had been initiated, under
Section 81 of the Registration Act, into the execution and registration of the
said deeds of sale. Aggrieved by the initiation of such an enquiry, Sri Ch.
Koteswara Rao moved this Court, by way of W.P No.16510 of 2023. All the
aforesaid Writ Petitions, which are still pending, are now being considered for
disposal.
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71. The contentions, raised by both Sri O. Manohar Reddy and Sri M.
R. S. Srinivas, are as follows:
1. The Lok Adalat, in Eluru, would have jurisdiction to pass awards, only if
the suits, under which these awards were passed, were maintainable
before the courts in Eluru. O.S.No.445 of 2019, filed before the Civil
Court in Eluru, was not maintainable as the lease in question was a
lease of agricultural land and only an agricultural tenancy case was
maintainable and the suit itself was not maintainable. Apart from this,
item No.1 property in the suit schedule was in Eluru while items 2 and 3
were within the jurisdiction of the Courts in Vijayawada. So is the case
for O.S. No. 446 of 2019. There was no common cause of action to club
these properties together. Accordingly, the suit itself was not
maintainable before the Court in Eluru.
2. The contention that the suits were filed in Eluru, because the caveats
were filed in the junior civil judge court Eluru is also an afterthought. The
caveats, by Sri Hemanth Kumar, were filed on 09.09.2019. The Suits
were filed on 25.09.2019, with the complaint that Sri Hemanth Kumar,
was seeking to interfere with the possession, of the plaintiffs therein,
over the land in West Godavari District. These suits were returned, from
time to time and got numbered only on 18.10.2019, which is about 23
days after the urgent need, to file these cases, was felt. Thereafter,
Written statements and affidavits are filed by Sri Hemanth Kumar, and a
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W.P.No.3325 of 2020 & batchsettlement is arrived and recorded, by the Lok Adalat, on 21.01.2020.
The entire timeline shows that the whole exercise is a contrived attempt
to create a story for passing off the awards as genuine awards passed
for resolving disputes between the parties.
3. Even otherwise no title flows from the proceedings of the Lok-Adalat or
the deed of sale. The property, in question, belonged to Dr. Prasad. Sri
Hemanth Kumar was only the General Power of Attorney of his brother.
However, the suit has been filed against Sri Hemanth Kumar in his
individual capacity and not as the representative of Dr. Prasad. In fact,
neither Dr. Prasad nor his legal heirs have been made parties to the suit
or the sale deeds. Any decree against Sri Hemanth Kumar, in his
personal capacity would not bind the estate of Dr. Prasad. Similarly, any
deed of sale executed by Sri Hemanth Kumar, in his personal capacity,
would also not bind the estate of Dr. Prasad as Sri Hemanth Kumar
himself has no title to this land and any document executed by him
would not confer title, on the purchasers.
4. The Awards, dated 21.01.2020, passed in O.S.No.446 of 2019 and
O.S.No.445 of 2020 are highly suspect and a result of collusion and not
on account of any genuine rights being conferred on the parties.
O.S.No.445 of 2020 and 446 of 2019 relate to properties situated in
Eluru as well as Vijayawada. The cause of action for the filing of the suit
in Eluru is supposed to be an attempt made by Sri Hemanth Kumar to
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interfere with the possession of the plaintiffs in the property in Eluru.
There is no averment or even a whisper of an averment, in the plaint,
about any attempt by Sri Hemanth Kumar to interfere with the
possession of the plaintiffs, in the property situated in Vijayawada. In
the absence of any cause of action, in relation to the properties in
Vijayawada, a suit would not be maintainable, in the Eluru Court,
against property situated in Vijayawada. The said award as well as the
subsequent sale deed would have to be set aside on the ground that
the entire exercise was a sham exercise, based on fraud, suppression
of fact and with malicious intent to deprive the fruits of the preliminary
decree. Apart from this, the Court itself had no jurisdiction. In such
circumstances, the Writ Petitions to set aside such an award would be
maintainable in view of Bhargavi Constructions and Another vs.
Kothakapu Muthyam Reddy and Ors., 27 and State of Punjab and
Another vs. Jalour Singh and Others.28
5. The award would also have to be set aside on the ground of fraud. S.P.
Chengalvaraya Naidu (Dead) by L.Rs. vs. Jagannath (Dead) by
L.Rs and Ors.,29 Meghmala and Ors vs. G. Narasimha Reddy and
Ors., 30 Sukh Sagar Medical College and Hospital vs. State of
27
(2018) 13 SCC 480 (paras 22 to 24 and 33)
28
(2008) 2 SCC 660 (para 12)
29
(1994) 1 SCC page 1 (paras 5 and 6)
30
(2010) 8 SCC 383 (paras 28 to 36)
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W.P.No.3325 of 2020 & batch
Madhya Pradesh and Ors., 31, Suraj Lamp and Industries Private
Limited through Director vs. State of Haryana and Another 32 ,
Ramesh Chand (D) Thr. Lrs., vs. Suresh Chand and Another33.
69. The respondents in these Writ Petitions, contend that the
awards passed by the Lok-Adalat are valid for the following reasons:
1) The Writ Petitions filed by the Trust against the awards of the Lok
Adalat and the subsequent Sale deeds are not maintainable, as the
Trust itself never came into existence. Apart from this, any suit or
petition, filed by a trust would have to be presented by all the trustees.
In the present case all the trustees have not filed the petitions and the
Petitions would fail on the ground of non joinder of necessary parties.
2) The suits were filed before the Courts in Eluru, as Sri Hemanth Kumar
had filed caveats, in the Court, in Eluru. Even otherwise, the courts, in
Eluru, have jurisdiction, over the suit schedule properties, including the
properties situated in Vijayawada. The suits were filed, for protecting the
possession of the plaintiffs therein, from Sri M. Hemanth Kumar, in view
of the threats made out by Sri M. Hemanth Kumar to interfere with the
possession of the plaintiffs, over the property, situated in Eluru as well
as the property situated in Vijayawada.
31
(2021) 13 SCC 587 (paras 19 to 21)
32
(2012) 1 SCC 656 (para 17)
33
(2025) SCC Online SC 1879 (paras 25 and 26)
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3) Even if such suits were not within the jurisdiction of the Courts in Eluru,
it would always be open to the parties to approach the Lok-Adalat with
respect to disputes which are not pending before it, to put an end to the
disputes between the parties. Reliance is placed upon Chinthala Adi
Lakshmi vs. State of Andhra Pradesh., 34 in W.P.No.6690 of 2000
before the Board of Trustees of the Port of Visakhapatnam vs.
Presiding Officer, District Legal Services Authority,
Visakhapatnam (para 10).
4) Even if the award of the Lok-Adalat is said to be without jurisdiction, the
subsequent deed of sale executed by Sri M. Hemanth Kumar in favour
of Sri Chadalawada Koteswara Rao would continue to be valid and the
cancellation of the sale deed cannot be sought, by way of the Writ
Petitions before this Court. The only forum for such relief would be the
Civil Court. As the trust had already filed O.S.No.1692 of 2023, for such
a relief, the said sale deed cannot be revoked by this Court.
5) The documents filed by the Trust regarding their possession over the
properties, in the possession of the plaintiffs, in the suits filed in Eluru,
cannot be accepted as they have been found to have been obtained in
collusion with the revenue authorities.
Consideration of the Court:
70. The aforesaid contentions raise the following issues:
34
MANU/AP/1964/2024 (paras 22 and 23)
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i) Whether, a Lok Adalat Award can be challenged by way of a Writ
Petition?
ii) Whether, the Writ petitions, filed by the Trust, against the Lok
Adalat Award and the Sale deeds in favour of Sri Ch. Koteswara
Rao, are maintainable as no such Trust exists and even
otherwise all the trustees who are necessary parties have not
been added?
iii) Whether the deed of sale executed by Sri M. Hemanth Kumar in
favour of Chadalavada Koteswara Rao can be set aside by this
Court, in a Writ Petition?
iv) Whether the pendency of O.S.No.1692 of 2023 would bar this
Court from considering the validity of the deed of sale registered
in favour of Sri Chadalavada Koteswara Rao?
v) Whether the Court of the 1st Additional Junior Judge, Eluru had
jurisdiction and whether the Lok Adalat, in Eluru, had jurisdiction
to pass awards, in the suits filed by Sri Chadalavada Koteswara
Rao and Smt. Parvathi in relation to the property situated in
Vijayawada?
vi) Whether the awards had been obtained by fraud and
misrepresentation, requiring the same to be set aside?
vii) Whether the awards are binding on the estate of Dr. Prasad?
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W.P.No.3325 of 2020 & batch
ISSUE NO. 1: “Whether, a Lok Adalat Award can be challenged by way
of a Writ Petition”?
71. The aforesaid issue had come up before the Hon‟ble Supreme
Court, in various judgments. The Hon‟ble Supreme court had taken a
consistent view that, a Lok Adalat Award can be challenged, by way of a writ
petition. The following extracts would be instructive:
In State of Punjab v. Jalour Singh, 35 the Hon‟ble Supreme Court
had held as follows:
12. It is true that where an award is made by the Lok Adalat in
terms of a settlement arrived at between the parties (which is
duly signed by parties and annexed to the award of the Lok
Adalat), it becomes final and binding on the parties to the
settlement and becomes executable as if it is a decree of a civil
court, and no appeal lies against it to any court. If any party
wants to challenge such an award based on settlement, it can be
done only by filing a petition under Article 226 and/or Article 227
of the Constitution, that too on very limited grounds. But where
no compromise or settlement is signed by the parties and the
order of the Lok Adalat does not refer to any settlement, but
directs the respondent to either make payment if it agrees to the
order, or approach the High Court for disposal of appeal on
merits, if it does not agree, is not an award of the Lok Adalat. The
question of challenging such an order in a petition under Article
227 does not arise. As already noticed, in such a situation, the
High Court ought to have heard and disposed of the appeal on
merits.
Following this judgment, the Hon‟ble Supreme Court in Bhargavi
Constructions v. Kothakapu Muthyam Reddy, 36 had held as follows:
35
(2008) 2 SCC 660 : (2008) 1 SCC (Civ) 669 : (2008) 1 SCC (Cri) 524 : (2008) 1 SCC (L&S) 535 : 2008 SCC
OnLine SC 137 at page 666
36
(2018) 13 SCC 480 : (2018) 4 SCC (Civ) 243 : 2017 SCC OnLine SC 1053 at page 486
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22. The question arose before this Court (three-Judge Bench)
in State of Punjab [State of Punjab v. Jalour Singh, (2008) 2 SCC 660
: (2008) 1 SCC (Civ) 669 : (2008) 1 SCC (Cri) 524 : (2008) 1 SCC
(L&S) 535] as to what is the remedy available to the person
aggrieved of the award passed by the Lok Adalat under Section 20 of
the Act. In that case, the award was passed by the Lok Adalat which
had resulted in disposal of the appeal pending before the High Court
relating to a claim case arising out of the Motor Vehicles Act. One
party to the appeal felt aggrieved of the award and, therefore,
questioned its legality and correctness by filing a writ petition under
Articles 226/227 of the Constitution of India. The High Court
dismissed the writ petition holding it to be not maintainable. The
aggrieved party, therefore, filed an appeal by way of special leave
before this Court. This Court, after examining the scheme of the Act
allowed the appeal and set aside the order of the High Court. This
Court held that the High Court was not right in dismissing the writ
petition as not maintainable. It was held that the only remedy
available with the aggrieved person was to challenge the award of
the Lok Adalat by filing a writ petition under Article 226 or/and Article
227 of the Constitution of India in the High Court and that too on very
limited grounds. The case was accordingly remanded to the High
Court for deciding the writ petition filed by the aggrieved person on its
merits in accordance with law.
23. This is what their Lordships held in para 12: (Jalour Singh
case [State of Punjab v. Jalour Singh, (2008) 2 SCC 660 : (2008) 1
SCC (Civ) 669 : (2008) 1 SCC (Cri) 524 : (2008) 1 SCC (L&S) 535] ,
SCC p. 666, para 12)
“12. It is true that where an award is made by the Lok Adalat in
terms of a settlement arrived at between the parties (which is duly
signed by parties and annexed to the award of the Lok Adalat), it
becomes final and binding on the parties to the settlement and
becomes executable as if it is a decree of a civil court, and no
appeal lies against it to any court. If any party wants to challenge
such an award based on settlement, it can be done only by filing a
petition under Article 226 and/or Article 227 of the Constitution, that
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W.P.No.3325 of 2020 & batch
too on very limited grounds. But where no compromise or
settlement is signed by the parties and the order of the Lok Adalat
does not refer to any settlement, but directs the respondent to either
make payment if it agrees to the order, or approach the High Court
for disposal of appeal on merits, if it does not agree, is not an award
of the Lok Adalat. The question of challenging such an order in a
petition under Article 227 does not arise. As already noticed, in such
a situation, the High Court ought to have heard and disposed of the
appeal on merits.”
24. In our considered view, the aforesaid law laid down by this Court
is binding on all the courts in the country by virtue of mandate of
Article 141 of the Constitution. This Court, in no uncertain terms,
has laid down that challenge to the award of Lok Adalat can be
done only by filing a writ petition under Article 226 and/or Article 227
of the Constitution of India in the High Court and that too on very
limited grounds. In the light of clear pronouncement of the law by
this Court, we are of the opinion that the only remedy available to
the aggrieved person (respondents herein/plaintiffs) was to file a
writ petition under Article 226 and/or Article 227 of the Constitution
of India in the High Court for challenging the award dated 22-8-2007
passed by the Lok Adalat. It was then for the writ court to decide as
to whether any ground was made out by the writ petitioners for
quashing the award and, if so, whether those grounds are sufficient
for its quashing.
This issue again came up before the Hon‟ble Supreme Court in Dilip
Mehta vs. Rakesh Gupta and Others. 37 The Hon‟ble Supreme Court,
following the earlier judgments cited above had also held as follows:
9. This Court has, in a series of decisions, explained the
consequence of this statutory finality. In State of Punjab v. Jalour
Singh (Supra), it was held that where an award is made by a Lok
Adalat in terms of a settlement between the parties, it is final and
binding and executable as a decree, and that no appeal lies37
2025 SCC Online SC 2737 (paras 14 & 15)
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W.P.No.3325 of 2020 & batchagainst it. It was further held that any challenge to such an award
must be brought before the High Court in proceedings under
Articles 226 or 227 of the Constitution of India and only on limited
grounds such as lack of consent, jurisdictional error or fraud. In
Bhargavi Constructions v. Kothakapu Muthyam Reddy (Supra),
this Court applied the same principle to a civil suit which sought to
impeach a Lok Adalat award and held that a civil suit to set aside
such an award is not maintainable and that the only proper remedy
is a writ petition before the High Court.
10. The principle that emerges is that the statutory finality attached
to a Lok Adalat award leaves no room for an appellate or plenary
civil remedy against the award treated as a decree. The award
may be executed as a decree, but its validity cannot be reopened
through an ordinary civil suit or by treating some other civil
proceeding as a vehicle for setting it aside. The only recognised
avenue of challenge is the constitutional jurisdiction of the High
Court, which is supervisory and exceptional in nature.
72. Sri Krishna Grandhi, the learned Senior Counsel, appearing for
Sri Ch Koteswara Rao, relied upon certain decisions of this court, to contend
that a Lok Adalat Award cannot be challenged, by way of a Writ Petition.
However, these judgments have been explained, by a Division Bench, (in
which one of us was a member), in Sadara Hotels Pvt.Ltd Vs. Lok Adalat
and Ors.38, in the following manner:
9. At the outset, the question of Locus of the petitioner,
to file this writ Petition has to be decided. Sri S. Lakshmi
Narayana Reddy, citing Sri Durga Malleswara Educational
Society, Vijayawada vs. District Legal Services Authority
(Lok Adalath), Vijayawada; Vadiga Amose vs. Vadiga
Anjaneyulu; and Nellore Sujannamma vs. Attipalli Nagi
Reddy and Ors., would contend that the petitioner as a third
party to the suit and award cannot file a writ petition assailing
the award. All the three judgments cited above placing
reliance on Balchu Subba Lakshmi vs. Sannidhi Srinivasulu
MANU/AP/0554/2009 : (2010) 1 ALT 483, had held that a
party to the award, can file a writ petition assailing such an
award and the only course available to a third party is to
assail the award, by way of a suit. However, it was also38
2024 (1) ALT 164 : 2024 SCC Online AP 5159
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W.P.No.3325 of 2020 & batchnoticed in these judgments, that even a third party can assail
an award, by way of a writ petition, if special circumstances
are made out. These judgments have not shutout writ
petitions completely. They have only held that writ petitions,
cannot be instituted normally, but such petitions can be
maintainable, on the facts of that case. PARA 9
73. In the light of the above exposition of law, by the Hon‟ble
Supreme Court, it must be held that the present set of writ petitions, filed by
Smt. Padmaja and the trust ( subject to the other objections) are maintainable,
subject to a case of fraud and lack of jurisdiction being made out.
ISSUE NO.2:
“Whether, the Writ petitions, filed by the trust, against the Lok Adalat
Award and the Sale deeds in favour of Sri Ch. Koteswara Rao, are
maintainable as no such trust exists and even otherwise all the trustees who
are necessary parties have not been added”?
74. Sri Krishna Grandhi, would contend that:
A. The Trust is a Public trust, which is governed by the provisions of the
A.P. Charitable and Hindu Religious Institutions and Endowments Act,
1987 (hereinafter referred to as the Endowments Act). He would
contend that the Trust has not come into existence as it never
registered itself and a Charitable Trust will not come into existence till it
is registered, under the provisions of the Endowments Act.
B. The Trust is still born and never functioned. It does not have an office,
nor has it discharged any functions, for which it is said to have been
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W.P.No.3325 of 2020 & batchconstituted. Thus, the Trust did not come into existence, either by
operation of Law or by actual functioning of the Trust.
C. The Trust is not a judicial entity and is only a compendium of all the
Trustees. Any case or proceeding initiated for the Trust would have to
be done by all the Trustees. The absence of any of the Trustees, would
be fatal to the case. As all the Trustees of this Trust have not been
impleaded, the Writs, filed by the Trust, are not maintainable. Reliance
is placed on AIR 1963 SC 309.
75. Sri O. Manohar Reddy, appearing for the Trusts, would contend that
the Writs are maintainable as the Trust, would have to be considered as a
public Trust and the Principles applicable to private Trusts would not be
applicable to Public Trusts.
This issue, again, contains the following sub issues:
A. Whether the Trust has come into existence?
B. Whether the Trust is a private Trust or a Public Trust?
C. Whether, all the Trustees have to be parties, to a suit or other
proceedings, initiated by a Trust?
ISSUE No. 2 (A) and (B):
These two issues are interconnected and are being taken up together.
76. The Law permits the owner of property, to transfer the legal title
of the property to another person/other persons, with a stipulation to hold the
94
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W.P.No.3325 of 2020 & batchproperty, for the benefit of a third person (s). The Owner who transfers such
property is called the Settlor, the person(s) to whom legal title is transferred is
called the Trustee(s) and the persons for whose benefit such transfer is made,
are called beneficiaries.
77. Trusts, fall in two categories. The first category are Private
Trusts, The second category are Public Trusts. The law relating to Private
Trusts is contained in the Indian Trusts Act, 1882. The Law relating to Public
Trusts, in the State of Andhra Pradesh, is the Andhra Pradesh Charitable &
Hindu Religious Institutions & Endowments Act, 1987.
78. Section No. 1 of the Indian Trusts Act, 1882, reads as follows:
1. Short title and commencement:
This Act may be called the Indian Trusts Act, 1882; and it shall come
into force on the first day of March, 1882.
Local extent, Saving: It extends to the whole of India except the State
of Jammu and Kashmir and the Andaman and Nicobar Islands; but
the Central Government may, from time to time, by notification in the
Official Gazette, extend it to the Andaman and Nicobar Islands or to
any part thereof. But nothing herein contained affects the rules of
Mohammedan law as to waqf, or the mutual relations of the members
of an undivided family as determined by any customary, or personal
law, or applies to public or private religious or charitable endowments
or to trusts to distribute prizes taken in war among the captors; and
nothing in the Second Chapter of this Act applies to trusts created
before the said day.
By virtue of the savings clause, all public and private religious and
charitable Trusts are excluded from the ambit of the Indian Trusts Act, 1882.
Sri Krishna Grandhi, has relied upon the judgments of the Hon‟ble high Court
of Madras and the Hon‟ble High Court of Madhya Pradesh, in Commissioner
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W.P.No.3325 of 2020 & batchof Income Tax, Madras vs. M. Jamal Mohamad Sahib.,39 to contend that
the Trust, in this case, is a public Trust. The above judgments may not be fully
relevant, as they were deciding the issue, on the basis of the definitions
contained in the Income Tax Act and the Madhya Pradesh Land Revenue
Code. It would be better to decide this issue on the basis of the definitions
given in the Endowments Act.
79. Section 2 (3) and 2 (4) of the Endowments Act define Charitable
Institution and Charitable purposes to mean:
2(3)„charitable endowment‟ means all property given or
endowed for any charitable purpose;
Explanation I. – Any property which belonged to or was given or
endowed for the support or maintenance of a charitable
institution or which was given, endowed or used as of a right for
any charitable purpose shall be deemed to be a charitable
endowment within the meaning of this definition,
notwithstanding that before or after the commencement of this
Act, the charitable institution has ceased to exist or ceased to
be used for any charitable purpose or the charity has ceased to
be performed.
Explanation II. – Any Inam granted to a service holder or to an
employee of a Charitable Institution for the performance of any
charity or service in connection with a charitable institution shall
not be deemed to be a personal gift to the service holder or to
the employees notwithstanding the grant of ryotwari patta to
such service holder or employee under the Andhra Pradesh39
AIR 1941 MAD 535 and 1975 SCC Online MP 38
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W.P.No.3325 of 2020 & batch(Andhra Area) Inams (Abolition and Conversion into Ryotwari)
Act, 1956, but shall be deemed to be a charitable endowment;
2(4) „charitable institution‟ means any establishment,
undertaking, organisation or association formed for a charitable
purpose and includes a specific endowment and dharmadayam;
80. Dr. Prasad, by virtue of the Will, of 17.04.1999, had created a
Trust, initially for the benefit of his mother. Thereafter, the Trust was to be a
non-profitable Trust for the benefit of public services, with particular focus
being on using the Trust for the education and health of deserving candidates
both within and outside Dr. Prasad‟s family. Dr. Prasad described the Trust to
be a “Private Charitable Trust”.
81. The savings clause of section No.1 of the Indian Trusts Act,
1882, excludes private charitable trust also, from the purview of the said Act.
The provisions of Section 2 of the Endowments Act, stipulate that any Trust
which provides education or medical relief would be a charitable Trust, which
falls within the ambit of the Endowments Act. The grant of the initial benefit, of
the Trust, to the mother of Dr. Prasad would not make any difference to the
ultimate character of the Trust and it is held that the Trust, created under the
Will, of 17.04.1999, is a Public Charitable Trust, regulated by the Endowments
Act.
82. Sri Krishna Grandhi, contends that the Trust has not come into
existence as it has not been registered under the provisions of the
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W.P.No.3325 of 2020 & batch
Endowments Act and has remained non functional, without any office or
activities. The first contention has to be rejected, in the light of Section 1 (3) of
the Endowments Act, extracted above, which states that all public charitable
institutions, whether registered or not, fall within the contours of the
Endowments Act. Section 44, of the Endowments Act also empowers the
Commissioner, to get charitable and religious institutions to be registered, if
the persons in management do not get such institutions registered. This would
only mean that there can be Public Charitable Institutions, which are not
registered with the Endowments Department.
83. The second contention, that the Trust has not been functional,
cannot be accepted, in view of the voluminous documentation filed by Sri Ch.
Koteswara Rao himself. The said documentation shows the continual fight,
between the Trust and Sri Ch. Koteswara Rao and Smt. Parvathi, over the
possession of the lands, which are claimed to have been purchased by Sri Ch
Koteswara Rao and Smt. Parvathi. The trust has also been a party to this
litigation from the trial court itself. Hence, it is held that the Trust has come into
existence and is a Public Charitable Trust.
ISSUE NO 2 (C ):”Whether, all the Trustees have to be parties, to a suit or
other proceedings, initiated by a Trust” ?
84. Sri Krishna Grandhi, would contend that the Writs, filed by the
Trust, are not maintainable as all the Trustees have not been impleaded as
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W.P.No.3325 of 2020 & batch
Petitioners or as Respondents. He contends that a Trust does not have a
juristic personality and is only a compendium of the Trustees. It is the trustees,
to whom the trust property is transferred and all of them have to act together,
for implementing the purposes of the trust. This function cannot be delegated.
He would also rely upon the principles of the Indian Trusts Act, on the ground
that the Act only embodies settled principles of Law, which are applicable to
all Trusts and relies upon the judgment of the Hon‟ble Supreme court in
Sk. Abdul Kayum v. Mulla Alibhai, 40 and the Hon‟ble High Court of Gujarat
in AtmaramRanchhodbhai v. Gulamhusein Gulam Mohiyaddin41.
85. The Hon‟ble Supreme Court, had held as follows:
23. It is true that Section 1 of the Indian Trusts Act makes provisions
of the Act inapplicable to “public or private religious or charitable
endowments; and so, these sections may not in terms apply to the
trust now in question. These sections however embody nothing
more or less than the principles which have been applied to all trusts
in all countries. The principle of the Rule against delegation with
which we are concerned in the present case, is clear : a fiduciary
relationship having been created, it is against the interests of society
in general that such relationship should be allowed to be terminated
unililaterally. That is why the law does not permit delegation by a
trustee of his functions, except in cases of necessity or with the
consent of the beneficiary or the authority of the trust deed itself;
apart from delegation “in the regular course of business”, that is, all
such functions which a prudent man of business would ordinarily
delegate in connection with his own affairs.
40
1962 SCC OnLine SC 159 : (1963) 3 SCR 623 : AIR 1963 SC 309
41
1972 SCC OnLineGuj10 : AIR 1973 Guj 113 : (1972) 13 GLR 828 at page 114
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W.P.No.3325 of 2020 & batch
24. What we have got in the present case is not delegation of
some functions only, but delegation of all functions and of all
powers and is nothing short of abdication in favour of a new
body of men. Necessarily there is also the attempt by the old
trustees to divest themselves of all properties vested in them
by the settlor and vesting them in another body of persons.
We know of no principle of law and of no authority which
permits such abdication of trust in favour of another body of
persons.
86. A Full Bench of the Hon‟ble High court of Gujarat, had held as
follows:
2. The determination of these two questions must depend on
the true nature and character of the office of co-trustees. The
classic statement of the law describing what is the true nature
and character of the office of co-trustees is to be found in the
following passage from Lewin on Trusts, (Sixteenth Edition),
page 181:–
“In the case of co-trustees of a private trust, the office is a
joint one. Where the administration of the trust is vested in co-
trustees, they all form as it were but one collective trustee and
therefore must execute the duties of the office in their joint
capacity. Sometimes, one of several trustees is spoken of as
the acting trustees, but the Court knows of no such distinction:
all who accept the office are in the eyes of the law acting
trustees. If anyone refuses or is incapable to join, it is not
competent for the others to proceed without him, and, if for
any reason they are unable to appoint a new trustee in his
place under Section 36(1) of the Act, the administration of the
trust must devolve upon the Court. However, the act of one
trustee done with the sanction and approval of a co-trustee
may be regarded as the act of both, though such sanction or
approval must be strictly proved.”
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W.P.No.3325 of 2020 & batch
12. Turning now to the second question which arises for
consideration, it is clear that all co-trustees must join in filing a
suit to recover possession of the property from the tenant after
determination of the lease. That must follow as a necessary
and logical consequence from the nature and character of the
office of co-trustees to which we have referred in the opening
part of the judgment — Section 48 of the Indian Trusts Act
provides that when there are more trustees than one, all must
join in the execution of the trust, except where the instrument
of trust otherwise provides. The principle embodied in this
section must apply equally to a public religious or charitable
trust as pointed out by the Supreme Court in AIR 1963 SC 309
(supra). Since all co-trustees must join in the execution of the
trust, and recovery of possession of the property from the
tenant after determination of the lease would be a duty arising
in the execution of the trust, all co trustees must join in filing a
suit to recover possession of the property from the tenant. The
only exception to this rule would be where the instrument of
trust otherwise pro vides. If the instrument of trust provides
that one co-trustee may institute a suit to recover possession
of the property from the tenant, he would be competent to
institute such a suit and it would be no answer on the part of
the tenant to say that the other co-trustees have not joined in
such suit. But where the instrument of trust does not so
provide all co-trustees must join in the suit to recover
possession of the property from the tenant for their office is a
joint office and they all form as it were but one collective
trustee. This position in law is now well settled and there is
complete unanimity of opinion amongst the High Courts about
it. We may mention only a few of the decisions which have
taken this view : Vedakannu v. Annadana Chatram, AIR 1938
Mad 982 and Ramesh Chandra v. Hemendra Kumar, AIR
1949 Cal 519.
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W.P.No.3325 of 2020 & batch
87. We are in respectful agreement, with the law laid down by the
Hon‟ble High Court of Gujarat and are bound by the law laid down by the
Hon‟ble Supreme court. However, there is one additional factor which needs
to be looked at. The Trust is governed by the Endowments Act. Sections 14
and 29 of the Endowments Act are relevant for this purpose. Section 14 states
that all properties of a Charitable Institution shall vest in that institution. This
would effectively give a juristic entity to the Charitable Institution. This view is
further fortified by Section 29 (3) (b) (iii) which stipulates that, it is the
Executive officer who should sue or be sued, in the name of the Institution or
Endowment, in all legal proceedings. By virtue of the provisions of the
Endowments Act, the aforesaid judgments would not be applicable to the
Trust, which is a charitable Institution, governed by the Endowments Act.
88. In the present case, the Charitable Institution, that is the Trust, is
the 1st Petitioner. The Executive officer, should have sued, in the name of the
Trust. However, the writ petitions have been filed, on behalf of the Trust by
one of the Trustees. Such a course of action is also permissible, in view of
Section 29 itself, which envisages a situation where there no Executive
Officer has been appointed. The Proviso to Section 29 (1) states that a
Trustee, in the absence of an executive officer can file a suit, if authorisation is
given by the Commissioner. However, this authorisation is needed, if the
income of the Trust exceeds Rs. 2 lakhs per year. In the present case, it is
obvious that the Trust has not been able to obtain any income, on account of
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it‟s disputes with Sri Ch. Koteswara Rao and Smt. M. Parvathi. In such a
situation, the Writ Petitions filed by a trustee, on behalf of the trust would be
maintainable.
ISSUE Nos. 3 and 4: “Whether the deed of sale executed by Sri M.
Hemanth Kumar in favour of ChadalavadaKoteswara Rao can be set aside by
this Court, in a Writ Petition”?
“Whether the pendency of O.S.No.1692 of 2023 would bar this Court
from considering the validity of the deed of sale registered in favour of Sri
Chadalavada Koteswara Rao”?
As both these issues are interconnected, they are being taken up
together. The Hon‟ble Supreme Court had dealt with the question of whether
a deed of alienation, including a deed of sale, could be set aside by a Court
acting under Article 226 of the Constitution of India. The Hon‟ble Supreme
Court in Asset Reconstruction Co. (India) Ltd. v. S.P. Velayutham, 42had
dealt with this issue in the following manner:
53. Actually, the registration of a document comprises of three
essential steps among others. They are:
(i) execution of the document, by the executant signing or
affixing his left hand thumb impression;
(ii) presenting the document for registration and admitting to
the registering authority the execution of such document; and
(iii) the act of registration of the document.
42
(2022) 8 SCC 210 : (2022) 3 SCC (Cri) 354 : (2022) 4 SCC (Civ) 284 : 2022 SCC OnLine
SC544 at page 235
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57. In suits for declaration of title and/or suits for declaration that a
registered document is null and void, all the aforesaid three steps
which comprise the entire process of execution and registration
come under challenge. If a party questions the very execution of a
document or the right and title of a person to execute a document
and present it for registration, his remedy will only be to go to the
civil court. But where a party questions only the failure of the
registering authority to perform his statutory duties in the course of
the third step, it cannot be said that the jurisdiction of the High Court
under Article 226 stands completely ousted. This is for the reason
that the writ jurisdiction of the High Court is to ensure that statutory
authorities perform their duties within the bounds of law.
58. It must be noted that when a High Court, in exercise of its
jurisdiction under Article 226 finds that there was utter failure on the
part of the registering authority to stick to the mandate of law, the
Court merely cancels the act of registration, but does not declare the
very execution of the document to be null and void. A declaration
that a document is null and void, is exclusively within the domain of
the civil court, but it does not mean that the High Court cannot
examine the question whether or not the registering authority
performed his statutory duties in the manner prescribed by law.
89. The contention of the Trust, In W.P.No. 13966 of 2023, is that
the Registrar had registered the deeds of Sale, without going through the
contents of the deeds of sale and had abdicated his responsibility and duty
cast on him, under the provisions of the Registration Act. The further
contention is that the Sale deeds were executed by a person who has no right
over the property and was making false claims of ownership.
90. The Sale deeds executed by Sri Hemanth Kumar, recite that, the
property belongs to his Brother Dr. Prasad, who had appointed him as his
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Power of Attorney holder; Sri Hemanth Kumar, as the power of Attorney
holder of his brother had entered into an agreement of sale with Sri Ch.
Koteswara Rao, for sale of the land, in the sale deeds and received the entire
sale consideration; Dr. Prasad passed away on 19.04.1999 and his wife Smt.
Padmaja had affirmed and ratified the sale agreements; the sale deeds could
not be executed due to various reasons, due to which Sri Ch. Koteswara Rao
had instituted O.S. No. 445 of 2019, before the 1st Additional Junior Civil
Judge, Eluru, for execution of the sale deed; there was a compromise in the
suit and an award was passed by the Lok Adalat, which directed Sri Hemanth
Kumar to execute a sale deed; and that the required sale deed was being
executed by him. The sale deed does not record that Sri Hemanth Kumar is
executing the Sale deeds as the power of attorney holder of Dr. Prasad. The
description of Sri Hemanth Kumar, shows that he is executing the Sale deeds,
in his individual capacity.
91. The Registrar, while registering the deeds of sale, was required to
ascertain prima facie title over the property. The recitals in the sale deeds,
presented before the Registrar, specifically stated that the property belonged
to Dr. Prasad and Sri M. Hemanth Kumar has executed the agreement of sale
as his Power of Attorney Holder. The Registrar, has apparently, permitted
registration of the document, despite the statement, in the sale deed, that Dr.
Prasad had passed away, which would automatically extinguish the Power of
Attorney granted to Sri Hemanth Kumar over the property. There is no
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statement that this Power of Attorney is coupled with interest and would
survive the death of Dr. Prasad. Such a claim is now being made and would
have to be decided by the trial court, in the suit filed for cancellation of the said
documents. However, the fact remains that the registrar did not look into this
fact.
92. The Writ petitioners have not only questioned the failure of the
registering authority to perform his mandatory duties but also the right and title
of the executant of the deeds of sale. The Hon‟ble Supreme Court, in the
above judgment, had held that a writ petition would be maintainable only if the
Writ is filed on the ground of the failure of the registering authority to discharge
his duties and that a suit would have to be filed if a declaration of nullity is
sought on any other ground. Further, O.S.No. 1692 of 2023 has been filed for
the same relief. In view of the fact that an alternative remedy has been
invoked, it would only be appropriate to relegate the petitioners to vindicate
their rights through the said suit.
93. It would also be appropriate to deal with W.P. No. 16510 of 2023
here, as the issues raised in that writ petition, cover some of the issues
discussed above
ISSUE NO.5: “Whether the Court of the I Additional Junior Judge, Eluru
had jurisdiction and whether the Lok Adalat, in Eluru, had jurisdiction to pass
awards, in the suits filed by Sri Chadalavada Koteswara Rao and Smt.
Parvathi in relation to the property situated in Vijayawada?
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94. The Legal Services Authorities Act, 1987 gave a statutory basis
for the Lok Adalat system. Section 19 (5) sets out the jurisdiction of the Lok
Adalat, within which it can take on record any settlements and pass awards on
such settlements. Section 19 (5) reads as follows:
19. Organisation of Lok Adalats.–
(5) A Lok Adalat shall have jurisdiction to determine and to arrive
at a compromise or settlement between the parties to a dispute in
respect of–
(i) any case pending before; or
(ii) any matter which is falling within the jurisdiction of, and is not
brought before, any Court for which the Lok Adalat is organised:
Provided that the Lok Adalat shall have no jurisdiction in respect of
any case or matter relating to an offence not compoundable under
any law.
95. Under this provision, a Lok Adalat has jurisdiction to arrive at and
record a compromise or settlement, between parties to a dispute, if such
disputes are already pending before the court, which constitutes the Lok
Adalat, or such disputes, which would fall within the jurisdiction of that Court, if
such disputes have not yet been filed before that Court. In the present case,
the concerned Lok Adalat was constituted, for the court of the I Additional
Junior Civil Judge, Eluru. The awards were passed, in relation to suits which
were already filed and pending before the said Court. At first blush, the
awards would appear to have been passed by a Lok Adalat, which had
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jurisdiction. However, the contention of the Writ Petitioners is that the court, in
Eluru, was approached under false pretences and to create a stage for
obtaining an award from the Lok Adalat, away from Vijayawada, where there
was a possibility of the scheme becoming known to the litigants, in O.S. No.
69 of 2002.
96. O.S.No.445 of 2019 was filed by Sri Chadalavada Koteswara
Rao, against Sri M. Hemanth Kumar, who was the sole defendant, in the
Court of the Junior Civil Judge, Eluru. The suit related to two items of property.
Item No.1 was Ac.0.65 cents of land in R.S.No.143/5 of Thallagokavaram
Village, West Godavari District. Item No.2 consisted of two separate bits of
land admeasuring Ac.1.50 cents in R.S.No.45/1 of Tadigadapa, Vijayawada
Rural and Ac.1.32 cents situated in Kanuru of Vijayawada Rural. The
pleadings, in the plaint were that item No.1 was leased out to Sri Chadalavada
Koteswara Rao and that the two pieces of land, described in item No.2 were
sold to Sri Chadalavada Koteswara Rao, by way of an agreement of sale,
dated 04.09.1997. It was contended that the entire sale consideration had
already been paid out and Sri Chadalavada Koteswara Rao was in peaceful
continuous possession and enjoyment of the property from 1997 itself.
97. It was further pleaded that Sri M. Hemanth Kumar attempted to
re-occupy the lands taking advantage of his influence in the area. The cause
of filing the suit was stated to be the attempt of Sri M. Hemanth Kumar to
enter into the property, situated in West Godavari District, and described as
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item No.1 in the schedule to the suit, on 24.09.2019. There is no pleading of
any attempt by Sri M. Hemanth Kumar to interfere with the possession of Sri
Chadalavada Koteswara Rao in the properties situated in Vijayawada Rural
Mandal. The cause of action, pleaded, by Sri Chadalavada Koteswara Rao
was that he was in possession of lands described in item Nos.1 and 2 and that
his possession was threatened by Sri M. Hemanth Kumar, on 24.09.2019,
over the land situated in West Godavari District.
98. Smt. M. Parvathi filed O.S.No.446 of 2019 before the Junior Civil
Judge Court, Eluru. The property described in the suit was Ac.0.61 cents of
land in R.S.No.143/4 situated at Thallagopavaram in item No.1 of the
schedule. Item No.2, consisted of two separate pieces of land admeasuring
Ac.1.05 cents in R.S.No.80/5 along with the right to bring water from a Well in
R.S.No.80/10 of Yenamalakuduru Village, Vijayawada Rural Mandal. Item
No.2 is an extent of Ac.1.93 cents in R.S.NO.45/1 of Yenamalakuduru Village,
Vijayawada Rural Mandal. In this suit also, the cause of action for the filing of
the suit is said to be the attempt of Sri M. Hemanth Kumar to interfere with the
possession of Smt. Parvathi over the land situated in West Godavari District,
on 24.09.2019. There is no pleading, in this suit also, that Sri M. Hemanth
Kumar had made any attempts to interfere with the possession of Smt.M.
Parvathi over the land situated in Vijayawada Rural Mandal.
99. Section 16 of C.P.C. stipulates that suits relating to rights over the
immovable property, including recovery of immovable property etc., shall be
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instituted in the Court within the local limits of whose jurisdiction the property
is situated. Section 17 of C.P.C. stipulates that where the property is situated
within the jurisdiction of different Courts, a suit may be instituted in any Court
within the local limits of whose jurisdiction any portion of the property is
situated. Under Section 16, the suit would have to be filed only in the Court
within whose jurisdiction, the immovable property is located. However, the
suit, may be maintainable, in relation to property which is not situated within
the jurisdiction of the Court, when a common cause of action may arise in
relation to different extents of immovable property. In the present case, there
is no such cause of action, due to which the suit could have been filed, in the
Court in Eluru, in relation to land situated in Vijayawada Rural Mandal. To that
extent, the Court in Eluru did not have jurisdiction, in both O.S.No.445 of 2019
and O.S.No.446 of 2019. Once, it is found that the court, in Eluru, did not have
jurisdiction, in O.S.No. 445 and 446 of 2019, over the properties situated in
Krishna Rural Mandal, the Lok Adalat, constituted for the court of the 1st
Additional Junior Civil Judge, Eluru, also would not have jurisdiction to pass
any award, in relation to the said properties.
100. Sri M. R. S. Srinivas, had also contended that, the lands said
to have been leased out to Sri Ch. Koteswara Rao and Smt. M. Parvathi, were
agricultural lands. He contends that any dispute between a tenant and a land
lord, over agricultural lands, can only be filed as an Agricultural Tenancy case,
before the Tribunal and a suit, before a civil court was barred. The bar against
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suits, in relation to disputes between a land lord and a cultivating tenant,
contained in section 13 and 16 of the Andhra Pradesh (Andhra Area) Tenancy
Act, 1956, was considered by a Full Bench of the erstwhile High Court of
Andhra Pradesh, in D. Venkata Reddy vs. B. Bushireddy AIR 1971 AP 87.
The full Bench had held that any dispute between a landlord and a tenant, can
be decided by the special officer. However, a suit would not be barred, once
issues beyond that relationship are raised.
ISSUE NO.2: “Whether the awards had been obtained by fraud and
misrepresentation, requiring the same to be set aside”?
101. The Hon‟ble Supreme Court, considered the question of what
acts, would constitute “fraud”, which would vitiate an Award, in the following
judgments, wherein the Hon‟ble Supreme court had held as follows:
S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 :
1993 SCC OnLine SC 318 at page 5
6. The facts of the present case leave no manner of doubt
that Jagannath obtained the preliminary decree by playing
fraud on the court. A fraud is an act of deliberate deception
with the design of securing something by taking unfair
advantage of another. It is a deception in order to gain by
another’s loss. It is a cheating intended to get an advantage.
Jagannath was working as a clerk with Chunilal Sowcar. He
purchased the property in the court auction on behalf of
Chunilal Sowcar. He had, on his own volition, executed the
registered release deed (Ex. B-15) in favour of Chunilal
Sowcar regarding the property in dispute. He knew that the
appellants had paid the total decretal amount to his master
Chunilal Sowcar. Without disclosing all these facts, he filed
the suit for the partition of the property on the ground that he
had purchased the property on his own behalf and not on
behalf of Chunilal Sowcar. Non-production and even non-
mentioning of the release deed at the trial is tantamount to
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playing fraud on the court. We do not agree with the
observations of the High Court that the appellants-
defendants could have easily produced the certified
registered copy of Ex. B-15 and non-suited the plaintiff. A
litigant, who approaches the court, is bound to produce all
the documents executed by him which are relevant to the
litigation. If he withholds a vital document in order to gain
advantage on the other side then he would be guilty of
playing fraud on the court as well as on the opposite party.
Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383 :
(2010) 3 SCC (Civ) 368 : (2010) 3 SCC (Cri) 878 : 2010
SCC OnLine SC 894 at page 395
32. The ratio laid down by this Court in various cases is that
dishonesty should not be permitted to bear the fruit and
benefit to the persons who played fraud or made
misrepresentation and in such circumstances the Court
should not perpetuate the fraud. (See Vizianagaram Social
Welfare Residential School Society v. M. Tripura Sundari
Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14
ATC 766] , Union of India v. M. Bhaskaran [1995 Supp (4)
SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94]
, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav [(2004)
6 SCC 325 : 2005 SCC (L&S) 785] , State of
Maharashtra v. Ravi Prakash Babulalsing Parmar [(2007) 1
SCC 80 : (2007) 1 SCC (L&S) 5] , Himadri Chemicals
Industries Ltd. v. Coal Tar Refining Co. [(2007) 8 SCC 110 :
AIR 2007 SC 2798] and Mohd. Ibrahim v. State of
Bihar [(2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] .)
33. Fraud is an intrinsic, collateral act, and fraud of an
egregious nature would vitiate the most solemn proceedings
of courts of justice. Fraud is an act of deliberate deception
with a design to secure something, which is otherwise not
due. The expression “fraud” involves two elements, deceit
and injury to the person deceived. It is a cheating intended to
get an advantage. [Vide Vimla (Dr.) v. Delhi Admn. [AIR
1963 SC 1572 : (1963) 2 Cri LJ 434] , Indian Bank v. Satyam
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W.P.No.3325 of 2020 & batchFibres (India) (P) Ltd. [(1996) 5 SCC 550] , State of A.P. v. T.
Suryachandra Rao [(2005) 6 SCC 149 : AIR 2005 SC 3110]
, K.D. Sharma v. SAIL [(2008) 12 SCC 481] and Central
Bank of India v. Madhulika Guruprasad Dahir [(2008) 13
SCC 170 : (2009) 1 SCC (L&S) 272] .]
34. An act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of
the others in relation to a property would render the
transaction void ab initio. Fraud and deception are
synonymous. Although in a given case a deception may not
amount to fraud, fraud is anathema to all equitable principles
and any affair tainted with fraud cannot be perpetuated or
saved by the application of any equitable doctrine including
res judicata. Fraud is proved when it is shown that a false
representation has been made (i) knowingly, or (ii) without
belief in its truth, or (iii) recklessly, careless whether it be true
or false. Suppression of a material document would also
amount to a fraud on the court. (Vide S.P. Chengalvaraya
Naidu [(1994) 1 SCC 1 : AIR 1994 SC 853]
, Gowrishankar v. Joshi Amba Shankar Family Trust [(1996)
3 SCC 310 : AIR 1996 SC 2202] , Ram Chandra
Singh v. Savitri Devi [(2003) 8 SCC 319] , Roshan
Deen v. Preeti Lal [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 :
AIR 2002 SC 33] , Ram Preeti Yadav v. U.P. Board of High
School & Intermediate Education [(2003) 8 SCC 311 : AIR
2003 SC 4268] and Ashok Leyland Ltd. v. State of
T.N. [(2004) 3 SCC 1 : AIR 2004 SC 2836] )
102. The facts, in this case require to be considered, on the basis of
the aforesaid guidelines. Both the suits were filed on 25.09.2019. Both the
suits, were returned, for compliance with objections, from time to time and the
suits were finally numbered only on 18.10.2019. Sri M. Hemanth Kumar filed
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his written statement, in both cases, on 18.12.2019. Thereafter, the awards
came to be passed on 21.01.2020. These awards recorded the terms and
conditions of the agreement between the plaintiffs, in these two suits, and Sri
M. Hemanth Kumar. Under the terms and conditions, which became part of
the award, the property in West Godavari District was to be given back to Sri
Hemanth Kumar. Further, Sri M. Hemanth Kumar was to execute registered
deeds of sale in favour of the plaintiffs in relation to the properties situated in
Vijayawada Rural Mandal. This settlement was entered into by Sri M.Hemanth
Kumar in his individual capacity. Even the suits filed by the plaintiffs, were
against Sri M. Hemanth Kumar in his individual capacity. The pleadings, in the
plaints, were that the plaintiffs, in these suits, had purchased the properties in
Vijayawada Rural Mandal under agreements of sale. The agreements of sale,
which were filed, along with the suits, would show that the agreements were
executed by Sri M. Hemanth Kumar acting as the Power of Attorney Holder of
Dr. Prasad. A compromise, promising to alienate the property of Dr. Prasad,
could not have been entered into by Sri M. Hemanth Kumar, in his individual
capacity. The terms and conditions, which became part of the award, are
terms and conditions accepted by a person, in relation to a property, over
which he did not have any title. This fact is also known to the Plaintiffs, in the
said suits, as they have produced the agreements of sale, in the said suits.
Arriving at a settlement that one party was to execute a sale deed, in favour of
the other party, with the full knowledge of both sides, that the transferor has
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no title over the said property, is a clear suppression of fact and an act of
misleading the court. Apart from this, Sri M. Hemant Kumar, who was fully
aware of the judgment and decree of the trial court and the pendency of the
present set of appeals, had deliberately suppressed these facts, while
presenting a compromise before the Lok Adalat. Further, Sri Hemant Kumar,
deliberately suppressed the fact that the Trial Court had passed a judgment
giving half the property to Smt. Padmaja, and that she would have to be made
a party to the Lok Adalat proceedings. The same, in terms of the observations
of the Hon‟ble Supreme Court, would amount to fraud, which vitiates the
awards and they are set aside.
ISSUE NO.3: “Whether the awards are binding on the estate of Dr.
Prasad?”
103. The agreements of sale, which are the basis of the awards,
passed by the Lok-Adalat, clearly stipulate that the properties belong to Dr.
Prasad. The said agreements of sale were signed by Sri M. Hemanth Kumar,
on behalf of Dr. Prasad as his power of attorney holder. Sri M. Hemanth
Kumar, did not have any title over the property, when he executed the
agreements of sale, nor did he obtain any further title, by devolution of the
property from Dr. Prasad to himself. In the circumstances, any compromise
executed by Sri M. Hemanth Kumar, in his individual capacity, would not bind
the estate of Dr. Prasad.
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104. Before parting with this part of the judgment, it would be
necessary to consider W.P.No. 16510 of 2023, which has been filed against
the enquiry initiated, against the deeds of sale executed by Sri Hemanth
Kumar in favour of Sri Ch Koteswara Rao.
105. This Writ Petition came to be filed by Sri CH. Koteswara Rao
to stop and set aside the enquiry initiated, under Section 81 and 82 of the
Registration Act, 1908, for determining whether the deeds of sale registered
as document Nos.3567 of 2023 and 3568 of 2023 in the office of the Sub-
registrar, Patamata had been done fraudulently and whether such deeds
could be cancelled. The primary contention of the petitioner herein is that
neither Section 81 nor Section 82 empowers the authorities under the
Registration Act to cancel any document which has been registered.
106. Section 81 and 82 provide for penalties in the event of the
conditions set out in these provisions arising in any registration. Section 81
relates to penalties that can be imposed on authorities under the Registration
Act while Section 82 imposes penalties on persons, making false statements
or believing false activities or transactions or abetting such activities to be
penalized in accordance with Section 82. There is no provision under either
Section 81 or Section 82 for cancellation of the deeds of sale registered as
document Nos.3567 of 2023 and 3568 of 2023. In such circumstances, an
enquiry for the purposes of cancellation may not be permissible. However, an
enquiry to ascertain whether compliance would have to be filed before the
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appropriate authorities, for punishing the petitioner or any other person,
including the registration authorities, can be taken up under these provisions.
107. In such circumstances, the enquiry initiated under Section 81
and 82 of the Registration Act, 1908 cannot be deemed to be totally without
jurisdiction. In such circumstances, this Writ Petition is disposed of with a
direction that the enquiry initiated under the impugned show cause notices
may go on. However, the scope of such enquiry would be restricted to
ascertaining whether there is any infraction, covered under Section 81 or 82 of
the Registration Act and to take appropriate action thereafter. Needless to
say, the petitioner shall be given adequate notice and opportunity of hearing
before any decision is taken. It is also made clear that the enquiry can extend
to the question of cancellation of the documents if there is any other provision
in the act or the rules empowering the registering authorities to take such step.
Part-III
108. Sri CH. Koteswara Rao filed I.A.No.1 of 2023 in A.S.No.707 of
2014 and I.A.No.1 of 2023 in A.S.No.645 of 2013 to implead himself as a
respondent in the appeal. Similarly, Smt. M. Parvathi filed I.A.No.645 of 2013
to implead herself as a respondent in these two appeals.
109. The contention of Sri CH. Koteswara Rao, for making out a case
for impleading him as a respondent is as follows:
Dr. Prasad, had entered into an agreement of sale, dated with
CH. Koteswara Rao, through his General Power of Attorney Holder Sri M.
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W.P.No.3325 of 2020 & batchHemanth Kumar for selling Ac.1.32 cents of land in Sy.No.256/4 of Kanuru
Village, Vijayawada, and Ac.1.50 cents of land in R.S.No.45/1 of Tadigadapa
Village, Vijayawada for a total consideration of Rs.17 lakhs which had been
paid in full, by way of payment of Rs.8 lakhs at the time of executing the
agreement of sale and the balance amount of Rs.9 lakhs, on various
occasions. These payments were also recorded, by way of endorsement, on
the said agreement of sale. Sri CH. Koteswara Rao was also put in
possession over the said properties from the date of agreement of sale and
has remained in possession of this property. These two properties are said to
be the subject matter of A.S.No.645 of 2013 and A.S.No.707 of 2014 as item
No.1 and item No.6 of A-schedule annexed to the plaint in O.S.No.69 of 2002.
110. The death of Dr. Prasad, and the alleged execution of the
Wills, dated 05.04.1999 and 17.04.1999, were not brought to the notice of Sri
CH. Koteswara Rao. Smt. Padmaja filed O.S.No.69 of 2002 concealing the
agreement of sale, executed by Sri M. Hemanth Kumar, on behalf of Dr.
Prasad and obtained a decree by playing fraud upon the Court. Sri CH.
Koteswara Rao became aware of the decree in O.S.No.69 of 2002 and the
prior death of Dr. Prasad, only when W.P.No.3807 of 2020 and W.P.No.15403
of 20221, challenging the Lok-Adalat Award, dated 21.01.2020, came to the
knowledge of CH. Koteswara Rao. The judgment and decree would need to
be set aside as the trust, to whom the property is said to have devolved, by
virtue of the Wills executed by Dr.Prasad, is an illegal, sham and non-existent
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entity created solely for the purposes of claiming the properties belonging to
Sri CH. Koteswara Rao as well as the properties of Dr. Prasad. The General
Power of Attorney executed by Dr. Prasad, while he was alive would remain
valid as the said General Power of Attorney is coupled with interest and there
was no revocation of the General Power of Attorney, by Dr. Prasad, before he
passed away. Sri CH. Koteswara Rao, was constrained to file O.S.No.445 of
2018 before the I Additional Junior Civil Judge, Eluru to seek a decree for
permanent injunction against Sri M. Hemanth Kumar on account of Sri M.
Hemanth Kumar seeking to interfere with the possession of Sri CH. Koteswara
Rao over the aforesaid properties. This litigation ended in a compromise
which was recorded by the Lok-Adalat at Eluru consequent to which Award
No.3 of 2020, dated 21.01.2020, was also passed by the said Lok-Adalat.
Pursuant to this award, Sri CH. Koteswara Rao and Sri Hemanth Kumar
approached the office of the Sub- Registrar and executed two deeds of Will
dated 14.03.2023, which were registered as documentsnumber3567 of 2023
and 3568 of 2023.
111. Sri CH. Koteswara Rao contends that he is a bonafide purchaser
for value coupled with possession which was given as part of the performance
of the agreement and his possession would be protected under Section 53(A)
of the Transfer of Property Act, 1882.
112. Sri CH. Koteswara Rao, relying upon the judgment of the Hon‟ble
Supreme Court in the case of Razia Begum vs. Sahebzadi Anwar Begum
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and Ors.,43 contends that a person who has a direct interest in a property may
be added as a party to any suit relating to such property. The contention of
Smt. M. Parvathi, in the application filed by her, to implead herself as a
respondent to the aforesaid appeals is as follows:
Dr. Prasad, who was permanently settled in the United States of
America had entrusted complete management and control over his properties,
in India, to Sri Hemanth Kumar, by way of notarized General Power of
Attorney on 11.08.1981 and subsequently by a registered General Power of
Attorney, dated 23.12.1992. On the basis of this Power of Attorney, Sri
Hemanth Kumar had executed an agreement of sale, on behalf of Dr. Prasad,
with Smt. M. Parvathi on 04.07.1998 for sale of Ac.1.05 cents of land in
R.S.No.80/5 of Yenamalakuduru Village and Ac.1.93 cents of land in
R.S.No.45/1 of Yenamalakuduru Village for a total consideration of Rs.5 lakhs.
This consideration was paid in the form of Rs.2,50,000/- at the time of
execution of the agreement of sale and by way of instalments for the balance
amount of Rs.2,50,000/-. The payment of the balance consideration was
endorsed on the agreement of sale deeds. Smt. M. Parvathi was put in
possession over the property from the date of agreement of sale and remains
in possession. The death of Dr. Prasad on 19.04.1999 and the alleged
execution of the Wills dated 05.04.1999 and 17.04.1999 were suppressed and
Smt. M. Parvathi was not aware of all these facts till she became aware of
43
AIR 1958 SC 886
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W.P.No.3325 of 2020 & batchfiling of W.P.No.3325 of 2020 and W.P.No.15383 of 2021 challenging the Lok-
Adalat Award, dated 21.01.2010. Smt. M. Parvathi reiterated the contentions
of Sri CH. Koteswara Ro, to the effect that the trust is an illegal, sham and
non-existent entity and that the Wills are bogus and sham documents. Smt. M.
Parvathi would further contend that she was constrained to file O.S.No.446 of
2019,before the I Additional Junior Civil Judge, to protect her possession over
the property, on account of the attempts of Sri M. Hemanth Kumar to interfere
with her possession over the said properties. Subsequently, the matter
resulted in a settlement which was recorded by the Lok-Adalat at Eluru and
consequently Award bearing Nos.4 of 2020, dated 21.01.020 was passed.
Smt. M. Parvathi, also relied upon the Judgment of the Hon‟ble Supreme
Court in Razia Begum vs. Sahebzadi Anwar Begum and Ors., along with
her contention that she is protected by Section 53-A of Transfer of Property
Act. However, there is no claim that any deed of sale had been executed by
Sri M. Hemanth Kumar in her favour, after the passing of the Award by the
Lok-Adalat.
113. Smt. M. Padmaja, did not file any counter affidavit to these
applications. However, the trust has filed counter affidavits. Apart from this,
both Sri O. Manohar Reddy and Sri M.R. S. Srinivas, had advanced
arguments. The case that is sought to be made out is that Sri M. Hemanth
Kumar, had admitted, in the suit, that only sale transactions were done by him
in relation to items 2 and 5 of „A‟ schedule properties and no other agreements
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or sale deeds had been executed by him with respect to the other properties.
This would show that the claims of the implead petitioners is illegitimate and
that the said implead petitioners were never in possession of the properties
allegedly obtained by them.
114. It is further stated that the agreements of sale relied upon by
the implead petitioners are sham documents, fabricated by the implead
petitioners and Sri M. Hemanth Kumar to deprive the trust of the property.
Further the suits filed by the implead petitioners against Sri M. Hemanth
Kumar are collusive suits, filed for creating documents, in favour of the
implead petitioners. As the documents relied upon by the implead petitioners
are sham documents, no rights arise under those documents in favour of the
implead petitioners. The trust further contends that Section 53-A is not
applicable to the case.
115. It is also contended that the implead petitions are not
maintainable as agreements of sale do not create any right and an agreement
holder cannot file implead petitions. In fact, the implead petitioners do not
have possession and no recent documents to prove possession had been
produced before the Court.
116. The primary contentions of the implead petitioners, for being
impleaded in the present appeals, is that they have entered into agreements
of sale even before the demise of Dr. Prasad and have been in possession of
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the respective extents of land under the agreements of sale. Thus, they have
obtained clear right and title over the land which they would be entitled to
protect. For such purposes, they are entitled to be impleaded as respondents
in the appeals. It is the further contention of the implead petitioners that they
would be entitled to assail the Wills executed by Dr. Prasad and also
demonstrate that the Power of Attorney granted by Dr. Prasad to Sri M.
Hemanth Kumar, which is coupled with interest, would not be affected by the
demise of Dr. Prasad.
117. The contention that the implead petitioners wish to raise, in the
appeal proceedings are that the Wills executed by Dr. Prasad are not valid
Wills as he was under heavy medication due to which Dr. Prasad was not in a
sound and disposing of mind to execute a valid Will; the Wills have not been
proved, in accordance with Law; the trust that is said to have been created
under the aforesaid Wills, is a sham trust which never came into existence
and as such, the Wills of 05.04.1999 and 17.04.1999 are still born Wills which
do not result in devolution of any property in favour of the trust.
118. The implead petitioners have also sought to press into service,
a large number of documents, to demonstrate their possession over the
properties in question and to prove the payment of the sale consideration set
out in the agreements of sale. This court, in view of the course of action being
adopted by this court, does not propose to go into these documents.
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W.P.No.3325 of 2020 & batch
Consideration of the Court:
119. The claim of the implead petitioners, is that they are in
possession of the properties handed over to them when Sri M. Hemanth
Kumar had executed agreements of sale in their favour. Further, the entire
consideration payable under these agreements had been paid and
consequently their right and title over the said property, which has been
further crystalized, by virtue of the Awards passed by the Lok-Adalat in Eluru,
requires to be protected. This can be done only when they are permitted to
implead themselves and adduce necessary evidence. They have also
produced a large number of documents in support of their claims.
120. The aforesaid contentions, reveal that the implead petitioners
seek to implead themselves on two grounds. Firstly, for the purposes of
demonstrating that the Wills, said to have been executed by Dr. Prasad are
non-existent and in any event the trust itself is non-existent. Secondly, their
rights over the land, created by virtue of the agreements of sale, mentioned
above, cannot be taken away on the basis of the aforesaid Wills.
121. The claim of the implead petitioners, is based on the agreements
of sale, said to have been executed in their favour, by the power of attorney of
Dr. Prasad, while he was still alive. This claim of the implead petitioners, does
not get affected whether the Wills of Dr. Prasad are valid or not. In the event
of the Wills being proved, as has been held in this case, the property would
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W.P.No.3325 of 2020 & batch
devolve upon the trust. However, any such devolution, would be subject to
any claim that could be raised by the implead petitioners.
122. Even if it was to be assumed that the implead petitioners are
permitted to implead themselves, at this stage and are able to bring material
or obtain admissions, in the cross examination of witnesses, to the effect that
the Wills are invalid, the property would simply devolve upon Smt. Padmaja on
one side and the sisters and brothers of Dr. Prasad on the other side. Even if
the Will claimed by Sri M. Hemanth Kumar, under which the property is said to
have been bequeathed to him by his mother, is also accepted, the implead
petitioners would still have to obtain deeds of sale from Smt. M. Padmaja as a
legal heir of Dr. Prasad.
123. In such circumstances, it does not matter whether the property
devolved upon Smt. Padmaja and her mother-in-law or whether the property
devolves upon a trust. It would only be in a case where the trust is non-
existent that the impleaded petitioners would lose a right to prove such a point
and would therefore be entitled to implead themselves for reopening the trial
in the matter. This question has already been answered, in favour of the trust,
while dealing with the writ petitions filed by the trust, challenging the awards
and the subsequent sale deeds.
124. Another aspect that needs to be mentioned is the effect of the
death of Dr.Prasad, on the registered power of attorney that had been
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W.P.No.3325 of 2020 & batch
executed in favour of Sri Hemanth Kumar. In the Will marked as Ex.B.19, Dr.
Prasad had recorded that the said power of attorney given by him, to Sri M.
Hemanth Kumar, would lapse upon his death. The general law relating to
termination of powers of attorney is that a power of attorney given to an agent
lapses upon the death of the principal or upon the principal rescinding such
General Power of Attorney. However, the death of the principal would not
terminate a power of attorney, if such a power of attorney is coupled with
interest. Elaborate arguments have been addressed, by both sides, to
demonstrate that the General Power of Attorney executed by Dr. Prasad is
coupled with interest. This Court is not going into the question of whether the
General Power of Attorney is coupled with interest and whether the General
Power of Attorney is still valid, or remained valid after the death of Dr.Prasad.
125. The implead petitioners, seek to implead themselves on the
question of law as to whether the Wills marked as Ex.B12 and B.19 can be
marked in evidence on the grounds that the said Wills cannot be produced in
India without a probate in the United States of America and that the Wills have
not been properly attested. Both these issues have been raised by Sri M.R.S.
Srinivas appearing for Smt. Padmaja. Sri Krishna Grandhi as well as Sri D. V.
Sita Ramamurthy, This issue has been considered in this judgment and the
said contentions have already been negatived. In such circumstances, nothing
further would be served by impleading the implead petitioners at this stage, for
the purposes of raising the aforesaid issue.
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W.P.No.3325 of 2020 & batch
126. While the presence of the implead petitioners is not
necessary for adjudicating the question of the validity and applicability of the
Wills to the estate of Dr. Prasad, it would still be necessary to permit the
implead petitioners to agitate their rights, in relation to the agreements of sale,
that they propose to place before the Courts as well as the question of
whether the power of attorney executed in favour of Sri Hemanth Kumar
would remain valid even after the demise of Dr. Prasad.
127. In view of the finding of this Court that the Will of Dr. Prasad is
proved and valid, nothing further would survive for further adjudication, before
the Trial Court. However, the issue of what properties, of Dr. Prasad, have not
been alienated and remain in the estate of Dr. Prasad and the rights of the
implead petitioners, over the suit schedule property remain for consideration.
To that extent these appeals would have to be remanded back to the trial
court, for giving an opportunity to the implead petitioners to adduce evidence,
to the limited extent of demonstrating their rights over the lands claimed by
them.
128. For the restricted purpose of ascertaining the rights of the
implead petitioners, regarding possession and claims over the said property,
before the trial court, the implead petitions are allowed.
129. Accordingly the Appeals, Writ Petitions and contempt case are
disposed of in the following manner:
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W.P.No.3325 of 2020 & batchAS Nos.645 of 2013 & 707 of 2014
1. The Will, of 17.04.1999, of Dr. Prasad is proved and valid.
2. The shares of the firm, set out in Schedule „B‟ of the Suit Schedule and
the immovable properties set out in Schedule „A” of the Suit Schedule
shall devolve, according to the Will, of Dr. Prasad, dated 17.04.1999.
3. The implead petitioners in I.A.Nos.1 and 2 of 2023 in A.S.No.645 of
2013 are impleaded as respondents 10 and 11 in A.S.No. No. 645 of
2013 and the implead petitioners in I.A.Nos.1 and 2 of 2023 in A.S. No.
707 of 2014 are impleaded as respondents14 and 15 in A.S.No.707 of
2014 respectively, for the purposes of giving them an opportunity to
demonstrate their rights over the lands claimed by them, before the trial
court.
4. A.S. No.645 of 2013 and A.S.No.707 of 2014 are allowed to that extent
and the matters are remanded back to the trial court, to the extent set
out hereinbelow.
5. The Trial Court, shall permit the implead petitioners to adduce evidence,
for ascertaining their possession and rights over the lands said to be in
their possession, by virtue of the agreements, said to have been
executed in their favour, by Sri Hemanth Kumar, as the power of
attorney holder of Dr. Prasad and whether they can be evicted from
such possession, if they are found to be in possession of these lands.
The scope of this enquiry shall be restricted to this aspect only and shall
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W.P.No.3325 of 2020 & batch
not be extended, in any manner, to the validity of the Will, of
17.04.1999.
6. The Trial Court, after ascertaining the rights and claim of the implead
petitioners, shall determine the suit schedule properties, which are
available for devolution, according to the Will of Dr. Prasad, and pass
necessary Final Judgment and Decree.
7. None of the observations of this court, over the right and claims of the
implead petitioners, shall be taken into account by the trial court and the
trial court shall decide the said issues, in accordance with law, and
uninfluenced, by the observations of this court.
8. W.P. No.3325 & 3807 of 2020; 15383, 15403 of 2021, are allowed
and the Awards of the Lok Adalat, in Eluru in Adalat Case No. 3 of 2020
dated 21.01.2020 and Lok Adalat case No.4 of 2020, dated 21.01.2020,
in O.S.No.446 of 2019, before the Principal Junior Civil Judge, Eluru are
set aside.
9. W.P.No.13966 of 2023, is dismissed leaving it open to the Trust, to
pursue O.S.No.1692 of 2023, pending before the III Additional Junior
Civil Judge-cum- III Additional Metropolitan Magistrate, Vijayawada.
10. W.P.No.16510 of 2023, is disposed of, in terms of this order.
11. In view of the above findings and directions, it would be
appropriate to close C.C. No.5225 of 2023 and the same is closed.
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W.P.No.3325 of 2020 & batch
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
There shall be no order as to costs.
________________________
R. RAGHUNANDAN RAO, J
_______________
T.C.D. SEKHAR, J
RJS
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W.P.No.3325 of 2020 & batch
THE HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
&
THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR
WRIT PETITION NOS:3325 & 3807 of 2020; 15383, 15403 of 2021, 13966 &
16510 of 2023; AS Nos.645 of 2013 & 707 of 2014 & CC No.5225 of 2023
(per Hon‟ble Sri Justice R.Raghunandan Rao)
06.03.2026
RJS
