Andhra Pradesh High Court – Amravati
T.Mahalaxmamma.Died. 9 Othrs vs T.Appalanaidu.Died3 Othrss on 7 July, 2025
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
APHC010446952002
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3526]
(Special Original Jurisdiction)
MONDAY, THE SEVENTH DAY OF JULY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
LETTER PATENT APPEAL No. 163/2002
BETWEEN:
1. T.Mahalaxmamma(Died) & 9 Others, -
2. Adari Satyanarayana, -
3. Adari Mahalaxmamma, -
4. Kandregula Varahalamma, -
5. Malla Satyanarayanamma (Died) per LRs a-
a 6 to 10, -
6. Adari Mahalazmamma, r/o. Pataveedi, Dimili Road,
Yellamanchili (m), Visakhapatnam.
7. Malla Parasuramu, r/o. Munagapata, Panchayat Street,
Munagapaka(m), Visakhapatnam(dist).
8. Malla Venkata Rao, r/o. Pataveedi, Dimili Road,
Yellamanchili (m), Visakhapatnam.
9. Malla Apparao, r/o. Munagapaka (m), Visakhapatnam(dist).
Appellants 6 to 10 are brought on record as LRs of deceased
Appellant as per the Hon'ble C.O.dt:19.8.15 in lpamp
lpamp-4/14.
4/14.
...Appellant(s)
AND
1. T Appalanaidu Died & 3 Others, -
...Respondent
2
IA No. 1 OF 2004 (CMP 7277 OF 2004
Petition under Section 151 CPC praying that in the
circumstances stated in the affidavit filed in support of the petition,
the High Court may be pleased To grant stay of all further
proceedings in O.S.NO.46/96 on the file of Fast Track Court,
Ankapalle and pass such other order or orders.
IA No. 1 OF 2007 (LPAMP 10254 OF 2007
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
IA No. 1 OF 2014 (LPAMP 4 OF 2014
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 the Petitioners 6 to 10 herein as
appellants 6 to 10 in the above L.P.A. as LRs at 5th Appellant and
pass such other order or orders.
Counsel for the Appellant(S):
1. K V SUBRAHMANYA NARUSU
Counsel for the Respondent:
1. PATANJALI PAMIDIGHANTAM
2. .
The Court made the following:
3
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
AND
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
LETTER PATENT APPEAL No. 163 of 2002
JUDGMENT:
(Per Hon’ble Sri Justice Tarlada Rajasekhar Rao)
The present Letter Patent Appeal is filed discontended with
the judgment and decree in A.S. No: 2445 of 1987 dated
13.03.2002 of a Learned Single Judge of the High Court of Andhra
Pradesh at Hyderabad in reversing the judgment and decree dated
05.07.1987 in O.S. No. 61 of 1984 on the file of Subordinate Judge
Court, Ankapalle.
2. For ease of reference, the parties in this LPA will be referred
as follows: the Plaintiff who initiated suit O.S. No. 61 of 1984 will
be referred to as the 1st Plaintiff and PW1 (Plaintiff No. 5 who was
examined as PW1). The sole defendant in the case will be referred
to as DW1. The trial Court referred the parties in a similar way.
3. The original suit, O.S. No. 61 of 1984, was filed by the first
plaintiff seeking a permanent injunction. After two amendments
were introduced, the relief sought was modified to include a
declaration of title and, if the Court determines that the plaintiffs
are not in possession of the properties in question, a request for
4
consequential possession relief. Following the death of the first
plaintiff, plaintiffs 2 to 5 were added based on the will dated
21.05.1978, which is marked as Exhibit A18 and is said to have
been executed by the 1st plaintiff.
4. Another suit O.S. No. 12 of 1987 was filed by the PW1 and
her two children for declaration of title and for consequential relief
of possession and for past and future profits at the rate of 50/- per
month basing on the registered settlement deed dated 01.11.1972
marked as Ex.A.54 is said to have been executed by the 1st
Plaintiff.
5. Both the suits were clubbed together and the learned Sub-
ordinate Judge Court, Ankapalle delivered the common judgment
dated 05.07.1987.
6. Relationship in between the parties:
Tekkali Mahalaxamamma who is the wife of Parasuramudu
@ Musili, the 1st plaintiff filed original suit, O.S. No. 61 of 1984,
seeking a permanent injunction. After two amendments were
introduced, the relief sought was modified to include a declaration
of title and consequential recovery of possession and on the death
of the 1st plaintiff on 06.05.1980, the plaintiff 2 to 5 were added
basing on the Will executed by the 1st plaintiff. Plaintiff No.5 was
5examined as PW1 in the suit. The 5th plaintiff is the younger sister
daughter and foster daughter of 1st Plaintiff Mahalaxmamma.
Plaintiffs 3 and 4 are the sisters of plaintiff No.5 and 2nd plaintiff is
the husband of 3rd plaintiff. Defendant No.1 is the son of 1st Plaintiff
(Mahalaxmamma) in O.S. No: 61 of 1984. Defendant No.2 is
formal party added as directed by the High Court in C.R.P. No. 161
of 1982.
7. Pleadings in the plaint in nutshell:
All the properties more fully described in the schedule
attached along with the plaint are self acquisition of the 1st plaintiff
and no one has got any right in the property and the 1st plaintiff is
in exclusive possession and enjoyment of the schedule properties
with absolute right and she has been paying taxes thereon. While
so, the 1st plaintiff executed a registered Will dated 05.02.1978
bequeathing all her properties after her death, the defendant
(DW1) is aggrieved and bent upon harassing the 1st plaintiff with
the help of his wife and three years back (before institution of the
suit) the defendant along with his henchmen harvested and carried
away the paddy crop standing in Ac.0-25 cents and prevented the
1st plaintiff from attending to their agricultural operations.
Subsequently after filing of the suit, 1st plaintiff executed a
6
registered Will dated 21.05.1978 in a sound and disposing state of
mind and later died, as such the plaintiffs 2 to 5 are in continuous
possession and enjoyment of the suit property and also further
asserted that the defendant (DW1) filed suit O.S. No. 70 of 1978
on the file of the Principal Subordinate Judge, Visakhapatnam for
partition and the same was dismissed on 17.04.1981. Hence the
defendant cannot maintain any defence, as the dismissal of the
suit filed for partition operates as res-judicata and doctrine of
estoppel applies.
8. The defendant (DW1) filed his written statement asserting
that 1st plaintiff executed Will dated 05.02.1978 (Ex-B1) in his
favour and denied the execution of the Will dated 21.05.1978 (Ex-
A18) in favour of the plaintiffs 2 to 5 and also denied all the
assertions made in the plaint and it is further asserted that plaint
schedule properties are the joint family properties of the 1st
defendant and his late father Parasuramudu has considerable
ancestral properties consisting of houses, lands and money
lending and the 1 st plaintiff is manager of the property while he was
minor, the 1st plaintiff continued the said business, 1st plaintiff is not
having any independent source of income and she developed the
properties of the joint family and the parents of the 1st plaintiff are
7
not financially sound and they have not provided any movable or
immovable properties to 1st plaintiff; fundamentally denied the
exclusive right of the 1st plaintiff over the suit schedule property.
9. Basing on the above pleadings, the learned trial Court Judge
has framed several issues. The relevant issues were framed as
additional issues which are extracted here under: the 1 st issue was
framed on 21.08.1985 after introducing the 1st amendment and the
issues 2 and 3 were framed on 21.05.1986 after introducing the 2 nd
amendment:
1. Whether the Will dated 21.05.1978 said to have been
executed by Tekkali Mahalaxmamma is true, valid and on
the 1st Defendant?
2. Whether the dismissal of suit O.S. No. 70 of 1978 on the
file of the Principal Sub-Court Visakhapatnam operates
as resjudicata?
3. Whether the plaintiffs are entitled to the declaration and
possession prayed for?
10. The learned trial Court judge, after evaluating both the
documentary and oral evidence, decreed the suit in favour of the
plaintiffs. The judge noted that the name of the 1st plaintiff,
(Mahalaxmamma), was consistently reflected in all the sale deeds
and documents marked as exhibits in the ‘A’ series. This
8
conclusion was reached despite the finding that there was no
evidence to suggest that Mahalaxmamma had sold any gold,
which was supported by the testimony of PW1.
11. It is also opined that the Will was proved under Section 63 of
the Indian Succession Act, 1925. The plaintiffs have called upon
the attestors and the scribe, as the attestation of the Will
necessitates the presence of two or more witnesses who must
have either witnessed the Testator sign the document or received
personal acknowledgment from the Testator regarding the
signature on the will. Additionally, the Will was attested in
accordance with Section 68 of the Indian Evidence Act, which
outlines the requirements for presenting evidence to prove the
execution of a document that must be attested as mandated by
law.
12. Discontented with the Judgment and Decree dated
05.07.1987 in O.S.No.61 of 1984 on the file of Subordinate Judge,
Ankapalle, the 1st defendant filed regular Appeal under Section 96
of CPC before the erstwhile High Court of Andhra Pradesh at
Hyderabad vide A.S. No.2445 of 1987. A learned single Judge of
the common High Court has allowed the appeal and reversed the
9
judgment of the trial Court, some pertinent observations are
provided below:
1. There is evidence that she has no property of her own
and she was not doing any independent business apart
from the business carried out by her husband
Parusuramudu and the evidence adduced also show that
the parents of (Mahalaxmamma) were not in a
satisfactory state of affairs as the documents executed by
them would always show that they have been mortgaging
the property, selling the properties from time to time. The
question of disposing her ornaments for purchase of
property that too from her own mother would not appeal
to the conscience of a man of ordinary prudence and no
affluent lady would sell her gold ornaments to purchase
the other properties. The way in which she came to the
house of the Parusuramudu @ Musili, the manner in
which the parents of (Mahalaxmamma) were dealing with
their property clinchingly establishes that
Mahalaxmamma had no property at all when Ex B-7 sale
deed was executed in her favour. Merely because it was
mentioned that the amount was paid by Mahalaxmamma,
it cannot be presumed that it is her own money without
establishing the source. There is no clear identification of
own source at any point of time either before the Ex B7
or subsequently and when she is not able to establish
that she had possessed Rs. 500/- when Ex B7 was
executed and it is unbelievable that she has purchased
10subsequent properties out of her own funds. The trial
court has completely misconstrued the evidence on
record and come to an erroneous conclusion that
Mahalaxmamma was having sufficient funds to purchase
the properties and also to finance the property under Ex
B7. And therefore it cannot be said that she has
purchased the property under Ex B7 from out of her own
funds.
13. The learned single judge has answered the issue relating to
principle of res-judicata as provided under:
The first suit was for declaration of title and for
consequential relief of possession and the later suit was filed
on the basis of the document Ex A54 registered settlement
deed, both the suits are quite different and the issues are
different even though they are tried simultaneously.
14. The learned Judge placed reliance on the judgment of the
Hon’ble Supreme Court in Narahari Vs Shanker reported in AIR
1953 SC 419, wherein it was observed that “the question of res-
judicata arises only when there are two suits. Even when there are
two suits the decision given simultaneously cannot be a decision in
former suit.
15. Discontented with the Judgment and Decree dated
13.03.2002 in A.S. No. 2445 of 1987, the present appeal was filed
11
under clause 16 of Letters Patent on two contentious grounds:
(1) that the learned single erred in reversing the finding of the trial
court where the Will was proved as contemplated under law
(2) that the appeal filed by the 1st defendant should have been
dismissed applying the principle of res-judicata under section 11 of
CPC as the defendant did not prefer any appeal against the
judgment in O.S. No: 12 of 1987 when both suits viz., O.S. No: 61
of 1984 and O.S. No: 12 of 1987 were clubbed and tried together
and a common judgment was delivered decreeing both the suits.
16. On the other hand, the learned counsel for the 1st defendant
filed brief written submissions, raised the following contentions:
a. The defendant having shown that there was a joint
family nucleus, does the burden shift to the plaintiff to
prove that the schedule properties are self-acquired
and has the plaintiff discharged this burden?
b. When by the year of death of the husband of the
plaintiff i.e., 1939, the law in force was The Hindu
Women’s Right to Property Act, 1937, which does not
grant any right to women in agricultural properties,
does the defendant not become the sole, absolute
owner of all properties with his mother i.e., plaintiff
12acting merely as his guardian when dealing with said
properties?
c. Does merely exhibiting the Will by the testatrix herself
in the plaint prove the Will more particularly when
suspicious circumstances have been attributed by the
defendant herein? “He quoted the following three
judgments : (1) H Venkatachala lyengar v. S.N.
Thimmajamma reported in AIR 1959 SC 443; (2) Rani
Purnima Devi v. Kumar Khagendra Narayan Dev
reported in AIR 1962 SC 567; (3) Indu Bala Bose v.
Manindra Chandra Bose reported in (1982) 1 SCC 20
17. Heard learned counsel for the Appellant in (LPA) Sri
K Sairam Murthy and Sri Patanjali Pamidighantam for respondents
2 and 3 who are wife and son of Defendant No1 in the suit.
18. The Court frames the following issues for consideration:
1. Whether the plaintiffs 2 to 5 were able to prove that the
properties were acquired by the 1st plaintiff, and is there any
reference to this in the plaint?
2. Whether there are any alleged suspicious circumstances,
and they have been clarified by the propounder of the Will?
13
3. Whether the principle of res-judicata applies to the facts of
the case?
4. Whether the judgment of the trial court is sustainable under
law?
19. Answer to Issue No: 1:
A perusal of the plaint clearly shows that entire case of the
plaintiffs was that 1st plaintiff is the owner of the suit schedule
property and that the first defendant had encroached upon it.
There was no pleading in the plaint about how did the 1st plaintiff
got over the property and it was introduced during the course of
evidence how the 1st plaintiff got the property. PW1 who is the 5th
plaintiff cannot plead on behalf of 1st plaintiff about the right and
title over the property who filed the suit for declaration and right
title over the suit schedule property. And it is also equally settled
that no party should be permitted to travel beyond its pleading and
that all necessary and material facts should be pleaded by the
party in support of the case set up by it and that the object and
purpose of pleading is to enable the adversary party to know the
case it has to meet and that in order to have a fair trial, it is
imperative that the party should state the essential material facts
so that other party may not be taken by surprise. Any amount of
14evidence without a pleading cannot be looked into as per the
settled legal position.
20. This Court relies on the following decisions for the above
said proposition Rajgopal (dead) by LRs v. Kishan Gopal and
another reported in (2003) 10 SCC 653 : ” that the courts are
precluded from taking cognizance of evidence in the absence of
specific pleading in the plaint or written statement”. Further, in the
decision in Ram Sarup Gupta v. Bishun Narain Inter College
reported in (1987) 2 SCC 555 it was reiterated that “the well settled
principle that in the absence of pleadings, evidence, if any,
produced by the parties cannot be considered and it is reiterated
and held that it is also equally settled that no party should be
permitted to travel beyond its pleading and that all necessary and
material facts should be pleaded by the party in support of the
case set up by it and that the object and purpose of pleading is to
enable the adversary party to know the case it has to meet and
that in order to have a fair trial, it is imperative that the party should
state the essential material facts so that other party may not be
taken by surprise”.
21. The learned single judge of the common High Court has
categorically answered or addressed the issues in favor of
15
Defendant No. 1, noting that there is evidence indicating she (the
1st plaintiff) has no property of her own and was not engaged in
any independent business outside of her husband Parusuramudu.
Furthermore, the evidence adduced also show that the parents of
(Mahalaxmamma) were not in a satisfactory state of affairs as the
documents executed by them would always show that they have
been mortgaging the property selling the properties from time to
time. Hence the issue is answered against plaintiffs.
22. Answer to Issue No: 2:
The settled principle of law that the burden of proof which
are peculiar to the proof of testamentary instruments, the normal
rule which governs any legal proceeding is that the burden of
proving a fact in issue lies on him who asserts it, not on him who
denies it. There is a long line of decisions bearing on the nature
and standard of evidence required to prove a will. If a caveator
alleges fraud, undue influence, coercion etc., in regard to the
execution of the will, such pleas have to be proved by him, but
even in the absence of such pleas, the very circumstances
surrounding the execution’ of the will may raise a doubt as to
whether the testator was acting of his own free will.
16
23. In the case of Shivakumar and Ors. Vs Sharanabasappa
and Ors. reported in (2021) 11 SCC 277, the Supreme Court after
traversing through the relevant decisions summarised the
principles. The principles enunciated in paragraph Nos.12.5 to
12.9 are instructive as regards the onus of proof on the
propounder to dispel the suspicious circumstances, when a
circumstance can be said to be suspicious and the illustrative
cases which may stoke such suspicion and the satisfaction of
judicial conscience of the Court. They read as under:
“12.5: If a person challenging the Will alleges fabrication or
alleges fraud, undue influence, coercion etc. in regard to the
execution of the Will, such pleas have to be proved by him,
but even in the absence of such pleas, the very
circumstances surrounding the execution of the Will may
give rise to the doubt or as to whether the Will had indeed
been executed by the Testator and/or as to whether the
Testator was acting of his own free will. In such eventuality,
it is again a part of the initial onus of the propounder to
remove all reasonable doubts in the matter.
12.6: A circumstance is “suspicious” when it is not normal or
is ‘not normally expected in a normal situation or is not
expected of a normal person’. As put by this Court, the
suspicious features must be ‘real, germane and valid’ and
not merely the ‘fantasy of the doubting mind.’
1712.7: As to whether any particular feature or a set of
features qualify as “suspicious” would depend on the facts
and circumstances of each case. A shaky or doubtful
signature; a feeble or uncertain mind of the Testator; an
unfair disposition of property; an unjust exclusion of the legal
heirs and particularly the dependants; an active or leading
part in making of the Will by the beneficiary thereunder etc.
are some of the circumstances which may give rise to
suspicion. The circumstances above noted are only
illustrative and by no means exhaustive because there could
be any circumstance or set of circumstances which may give
rise to legitimate suspicion about the execution of the Will.
On the other hand, any of the circumstance qualifying as
being suspicious could be legitimately explained by the
propounder. However, such suspicion or suspicions cannot
be removed by mere proof of sound and disposing state of
mind of the Testator and his signature coupled with the proof
of attestation.
12.8: The test of satisfaction of the judicial conscience
comes into operation when a document propounded as the
Will of the testator is surrounded by suspicious
circumstance/s. While applying such test, the Court would
address itself to the solemn questions as to whether the
testator had signed the Will while being aware of its contents
and after understanding the nature and effect of the
dispositions in the Will?
18
12.9: In the ultimate analysis, where the execution of a Will
is shrouded in suspicion, it is a matter essentially of the
judicial conscience of the Court and the party which sets up
the Will has to offer cogent and convincing explanation of
the suspicious circumstances surrounding the Will.
24. The Apex Court in the recent judgment in Meena Pradhan
and others vs Kamala Pradhan and others reported in (2023) 9
SCC 734 following the judgment in Shivakumar and Ors. V/s.
Sharanabasappa and Ors. reported in (2021) 11 SCC 277 held
that whenever there exists any suspicion as to the execution of the
will, it is the responsibility of the propounder to remove all
legitimate suspicions before it can be accepted as the testator’s
last will. In such cases, the initial onus on the propounder becomes
heavier. And further held that suspicious circumstances must be
“real, germane and valid” and not merely “the fantasy of the
doubting mind”. Whether a particular feature would qualify as
“suspicious” would depend on the facts and circumstance of each
case. Any circumstance raising suspicion legitimate in nature
would qualify as suspicious circumstances, for example, a shaky
signature, a feeble mind, unfair and unjust disposition of property ,
the propounder himself taking a leading part in the making of the
will under which he receives a substantial benefit, etc.
19
25. In the case of Ramabai Padmakar Patil vs. Rukminibai
Vishnu Vekhande and others reported in (2003) 8 SCC 537
wherein it was enunciated that a Will is executed to alter the mode
of succession and by the very nature of things, it is bound to result
in either reducing or depriving the share of a natural heir. If a
person intends his property to pass to his natural heirs, there
is no necessity at all of executing a Will. It is true that a
propounder of the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs have either been
excluded or a lesser share has been given to them, by itself
without anything more, cannot be held to be a suspicious
circumstance, especially in a case where the bequest has
been made in favour of an offspring.
26. The registration of the Will does not provide the assurance
about the genuineness of the Will, nor does it dispel the suspicious
circumstances. Reliance was placed on the decision of the Hon’ble
Supreme Court in the case of Rani Purnima Debi and another vs.
Kumar Khagendra Narayan Deb and another reported in AIR 1962
Supreme Court 567., wherein the Supreme Court enunciated the
law as under:
20
“23. There is no doubt that if a will has been registered, that
is a circumstance which may, having regard to the
circumstances, prove its genuineness. But the mere fact that
a will is registered will not by itself be sufficient to dispel all
suspicion regarding it where suspicion exists, without
submitting the evidence of registration to a close
examination. If the evidence as to registration on a close
examination reveals that the registration was made in such a
manner that it was brought home to the testator that the
document of which he was admitting execution was a will
disposing of his property and thereafter he admitted its
execution and signed it in token thereof, the registration will
dispel the doubt as to the genuineness of the will. But if the
evidence as to registration shows that it was done in a
perfunctory manner, that the officer registering the will did
not read it over to the testator or did not bring home to him
that he was admitting the execution of a will or did not satisfy
himself in some other way (as, for example, by seeing the
testator reading the will) that the testator knew that it was a
will the execution of which he was admitting, the fact that the
will Was registered would not be of much value. It is not
unknown that registration may take place without the
executant really knowing what he was registering. Law
reports are full of cases in which registered wills have not
been acted upon: (see, for example, Vellasaway Sarvai v. L.
Sivaraman Servai, (ILR 8 Rng 179: (AIR 1930 PC 24),
Surendra Nath v. Jnanendra Nath (AIR 1932 Cal 574) and
Girji Datt Singh v. Gangotri Datt Singh (S) (AIR 1955 SC
21
346). Therefore, the mere fact of registration may not by
itself be enough to dispel all suspicion that may attach to the
execution and attestation of a will; though the fact that there
has been registration would be an important circumstance in
favour of the will being genuine if the evidence as to
registration establishes that the testator admitted the
execution of the will after knowing that it was a will the
execution of which he was admitting.” (emphasis supplied)`
27. A useful reference, in this context, can be made to the
judgment of the Supreme Court in the case of Leela Rajagopal and
others vs. Kamala Menon Cochran and ors. reported in (2014) 15
SCC 570, wherein the Supreme Court emphasised that the judicial
verdict, in the last resort, will be on the basis of a consideration of
all the unusual features and suspicious circumstances put together
and not on the impact of any single feature that may be found in a
Will or a singular circumstance that may appear from the process
leading to its execution or registration.
28. The Supreme Court in the case of Veerattalingam & Ors. Vs.
Ramesh & Ors. reported as AIR 1990 SC 2001 (2203) held that
the court while construing a Will should try to ascertain the
intention of the testator to be gathered primarily from the language
of the document; but while so doing the surrounding
circumstances, the position of the testator, his family relationship
22and probability that he used the words in a particular sense must
also taken into account. They lend a valuable aid in arriving at the
correct construction of the Will. The Supreme Court has time and
again has held that the court should, to the extent legally
permissible give effect to the intention of the testator. The intention
has to be gathered by reading the Will as a whole. As far as
possible, the effect should be given to every clause in the Will as
each clause therein is important as the other. It was further argued
that Section 87 of the Indian Succession Act provides that the
intention of the testator shall not be set aside because it cannot
take effect to the full extent but, effect is to be given to it as far as
possible. The paramount intention of the testator should be given
effect to in determining the intention of the testator, the entire Will
has to be looked into and all clauses in a Will, will have to be read
together. The courts have held time and again that if the
dispositive words in the Will are clear and unambiguous, the court
is bound to enforce them. Even if there is any ambiguity, it is
necessary to ascertain the declared intention of the testator from
other clauses of the Will and also the surrounding circumstances.
The Supreme Court has categorically held that cardinal maxim to
be observed, is to ascertain the intention of the testator from the
23
language of the document which is to be read as a whole without
indulging in any conjecture or speculation. (Refer: Gnambal
Ammal Vs. T.Raju Ayyar and Ors. reported in AIR 1951 SC 103)
29. If a Will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be removed by
cogent, satisfactory and sufficient evidence to dispel suspicion.”
30. In Bharpur Singh & Ors., v. Shamsher Singh, reported in
2009 (3) SCC 687, the Hon’ble Supreme Court at Paragraph 16
has stated the following three aspects that must be proved by a
propounder:
“16….. (i) that the Will was signed by the testator in a sound
and disposing state of mind duly understanding the nature
and effect of disposition and he put his signature on the
document of his own free Will, and (ii) when the evidence
adduced in support of the Will is disinterested, satisfactory
and sufficient to prove the sound and disposing state of
testator’s mind and his signature as required by law, Courts
would be justified in making a finding in favour of
propounder, and (iii) If a Will is challenged as surrounded by
suspicious circumstances, all such legitimate doubts have to
be removed by cogent, satisfactory and sufficient evidence
to dispel suspicion.”
24
31. Thereafter, in paragraph 23, the Apex Court has narrated a
few suspicious circumstance, as being illustrative but not
exhaustive, in the following manner:-
“Suspicious circumstances like the following may be found
to be surrounded in the execution of the Will:
(i) The signature of the testator may be very shaky and
doubtful or not appear to be his usual signature.
(ii) The condition of the testator’s mind may be very feeble
and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for the
natural heirs without any reason leaving everything to a
stranger instead of family
(iv) The dispositions may not appear to be the result of the
testator’s free Will and mind.
(v) The propounder takes a prominent part in the execution
of the Will.
(vi) The testator used to sign blank papers.
(vii) The Will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.”
32. Cases in which the execution of the Will is surrounded by
suspicious circumstances stand on a different footing. That
suspicion cannot be removed by the mere assertion of the
25
propounder that the Will bears the signature of the testator or that
the testator was in a sound and disposing state of mind and
memory at the time when the Will was made, or that those like the
wife and children of the testator who would normally receive
their due share in his estate were disinherited because the
testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus
heavier and therefore, in cases where the circumstances attendant
upon the execution of the Will excite the suspicion of the court, the
propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
33. In the light of the aforesaid exposition of law, we would like
to deal with the broad suspicious circumstances pressed into
service on behalf of the Defendants.
34. In the present case on hand, as admitted in the plaint the 1st
plaintiff has executed Ex.B1 dated 05.02.1978 to her son and there
is nothing stated in the Will why the Will Ex B1 was cancelled and
another Will was executed in favour the plaintiffs 2 to 5 vide
Ex.A18 dated 21.05.1978 rather than her own son, merely
Mahalaxmamma’s son filed a suit against her mother not a ground
to cancel the Ex.B1 and it is peculiar and it is pertinent to note that
26
Ex.A18 was executed after instituting of the suit when there is a
registered settlement dated 01.11.1972 Ex.A53 is in favour of PW1
and to her two sons, executing the Will Ex A18 creates some
suspicion. PW1 had been examined on various spells or sessions,
on 10.07.1986 PW1 stated in the cross-examination that she didn’t
know why the 1st plaintiff (Mahalaxmammma) had executed
Ex.A18, nullifying the Will Ex.B1, which had been executed in favor
of her son DW1. It is relevant to mention that one of the attestors
is PW1’s brother, and another is a close associate of the other
attestor. It is also important to address the reason behind the
three-day delay in registering the Ex A18 Will. The Will was
executed on 21.05.2018, but was not registered until 24.05.2018.
While the presence of the attestors is not necessary for the
registration of Ex A18 Will before the Registrar, submitting the
document for registration three days later raises concerns and
lends support to the defendant’s claim that the document was not
executed by the 1st Plaintiff (Mahalaxmamma) but rather by PW1.
All the above suspicious circumstances have not been clarified by
presenting convincing evidence. The trial Court did not address
these suspicious circumstances. The trial Court addressed the
matter by merely noting that the attestors were examined and that
27
the requirements of Sections 63 of the Indian Succession Act of
1925 and Section 68 of the Indian Evidence were met.
35. It is plausible to believe that the first plaintiff did not willingly
execute the Will. It was due to minor discords between the mother
and son, the 1st defendant, as well as the 1st plaintiff, which
allowed PW1 (plaintiff 5) to obtain a new Will. A cumulative
consideration of the aforesaid factors renders it unsafe to draw an
inference that the Will has been proved to the satisfaction of the
conscious of the Court free of the suspicious circumstances. In the
result of the aforesaid discussion coupled with the judgments cited
by this Court, issue No.2 is decided in favor of the defendants and
against the plaintiffs. Hence the issue which is answered by the
trial Court is unsustainable in the light of the above discussion.
36. Answer to Issue No: 3:
ORDER 41 deals with appeals from Original Decrees. As
per Rule 33 of Order 41, which provides for Power of Court
of Appeal “the Appellate Court shall have power to pass any
decree and make any order which ought to have been
passed or made and to pass or make such further or other
decree or order as the case may require, and this power
may be exercised by the Court notwithstanding that the
28appeal is as to part only of the decree and may be exercised
in favour of all or any of the respondents or parties, although
such respondents or parties may not have filed any appeal
or objection and may, where there have been decrees in
cross-suits or where two or more decrees are passed in one
suit, be exercised in respect of all or any of the decrees,
although an appeal may not have been filed against such
decrees.
37. Though Order 41, Rule 33 confers wide and unlimited
jurisdiction on Courts to pass a decree in favour of a party who has
not preferred any appeal, there are, however, certain well-defined
principles in accordance with which that jurisdiction should be
exercised. Normally, a party who is aggrieved by a decree should,
if he seeks to escape from its operation, appeal against it within
the time allowed after complying with the requirements of law.
Where he fails to do so, no relief should ordinarily be given to him
under Order 41, Rule 33 CPC. (See the judgment of apex
court Banarsi And Ors vs Ram Phal reported in 2003 (9) SCC
606).
38. In both suits, the plaintiffs are seeking a declaration of rights
over the suit schedule properties. However, the plaintiffs have not
29
successfully established the rights of the 1st plaintiff to the suit
schedule properties. If the appellate court allows the appeal in one
of the suits, that finding will also apply to the other suit as the
properties in the suit schedule are one and the same, as there has
been no appeal filed by Defendant No. 1 against O.S. No:12 of
1987 on the file of the Subordinate court Anakapalle.
Consequently, the argument that the principle of res judicata
applies to the facts of this case is unfounded or lacks merit.
39. Answer to Issue No. 4:
In the facts and circumstances of the case, it can reasonably
be presumed that taking advantage of the quarrels between the
mother and son entered the home of the first plaintiff,
(Mahalaxmammma), and attempted to unlawfully or deceitfully
acquire her properties by using force and obtained Ex A54
registered settlement deed and Ex A18 Will dated 21-05-2018 by
cancelling the Will Ex B1 which is strong suspicious and cleverly
testified that she is not aware of the fact of cancellation of Will Ex
B1 dated 05-02-1978 executed in favour of son of 1st plaintiff,
(Mahalaxmammma).
40. The counsel for respondent in LPA had raised the issue
“When by the year of death of the husband of the plaintiff i.e.,
30
1939, the law in force was The Hindu Women’s Right to Property
Act, 1937, which does not grant any right to women in agricultural
properties, does the defendant not become the sole, absolute
owner of all properties with his mother i.e., plaintiff acting merely
as his guardian when dealing with said properties?”
41. As the point raised, though for the first time in the present
appeal, in view of the legal aspect involved, it is deemed
appropriate to deal with the same.
42. Section 3 of the Hindu Women’s Rights to Property Act, with
which we are concerned, reads thus: Devolution of property –
(1) When a Hindu governed by the Dayabhaga School of
Hindu Law dies intestate leaving any property, and when
a Hindu governed by any other school of Hindu law or by
customary law dies intestate leaving separate property,
his widow, or if there is more than one widow, all his
widows together, shall, subject to the provisions of sub-
section (3), be entitled in respect of property in respect of
which he dies intestate to the same share as a son.
Provided that the widow of a predeceased son shall
inherit in like manner as a son if there is no son surviving
of such predeceased son, and shall inherit in like manner
as a sons son if there is surviving a son or sons son of
such predeceased son.
31
Provided further that the same provision shall apply
mutatis mutandis to the widow of a predeceased son of a
predeceased son.
(2) When a Hindu governed by any school of Hindu law
other than the Dayabhaga School or by customary law
dies having at the time of his death an interest in a Hindu
joint family property, his widow shall, subject to the
provisions of sub-section (3), have in the property the
same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the
provisions of this section shall be the limited interest
known as a Hindu woman’s estate, provided however
that she shall have the same right of claiming partition as
a made owner.
(4) The provisions of this section shall not apply to an estate
which by a customary or other rule of succession or by
the terms of the grant applicable thereto descends to a
single heir or to any property to which the Indian
Succession Act, 1925, applies.
43. In Smt. Angurbala Mullick v. Debabrata Mullick, AIR 1951
SC 293 = 1951 SCC 420 : a Bench of four Judges of the Supreme
Court observed thus:
“As seen from Section 3(1) Hindu Women’s Rights to
Property Act abrogates the general rule of Hindu Law
according to which a widow succeeds to her deceased
husband’s property only in default of male issue and she is
32now entitled to the same share as a son along with or in
default of a male issue.”
44. And it further held that the language of section 5 of the Act is
exactly the same as that of section 30 of the Indian Succession Act
and the object underlying both these provisions appears to be
identical. Mere execution of a Will is not enough to exclude the
operation of the Act. The Will must be an operative Will and if the
Will is void or incapable of taking effect, it would be deemed that
the testator has died intestate. If the property is “non-
testamentable”, and no testamentary disposition of such property
is possible or could take effect in law and the testator must in such
circumstances be deemed to have died intestate in respect of such
property.
45. The issue relating to non-applicability of the 1937 Act to
agricultural land was resolved by Amendment Act 26/1947 and by
virtue of such Amendment Act, the Act 1937 was made applicable
to agricultural lands with effect from 26.11.1946 i.e., effective date
of Amendment Act. (refer judgment of Madras High Court in
Umayal Achi Vs. Lakshmi Achi, 1945 (1) MLJ 108) as observed in
paragraph No.3.
33
46. Considering the detailed discussion and the legal
precedents set forth by the Apex Court in the previous paragraphs,
the judgment and decree of the Appellate Court in A.S. No.2445 of
1987 dated 13.03.2002 is sustainable; and the Suit O.S. No. 61 of
1984, on the file of the Subordinate Court, Anakapalle, is rightly
dismissed.
47. In the result, the Letter Patent Appeal fails and is
accordingly dismissed.
Interlocutory Applications if any pending in this Letter Patent
Appeal, shall stand closed.
__________________________
JUSTICE NINALA JAYASURYA
__________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 07.07.2025
Harin
34
THE HON’BLE SRI JUSTICE NINALAYA JAYASURYA
AND
THE HON’BLE SRI JUSTICE TARLADA RAJASEKHARA RAO
139
LPA No. 163 OF 2002
Date: 07.07.2025
Harin
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