P.S. Narayana, J.
1. This Appeal is preferred as against the Judgment and decree in O.S. No. 42/82 on the file of Additional Subordinate Judge, Rajahmundry by defendants 1 and 13. Though the factual matrix appears to be a bit voluminous, the short but the crucial question which falls for consideration in the present Appeal is the interpretation of the Clauses in Ex.B-1 said to have been executed by Sri Gadireddy Rama Rao and the validity thereof in the light of the provisions of the Indian Succession Act, 1925, hereinafter in short referred to as "Act" for the purpose of convenience.
2. Originally, the plaintiff Thota Venkata Seshu Bai, represented by her Power of Attorney holder Thota Ramchandra Rao, filed the suit praying for the following reliefs:
(a) to declare the right and title of the plaintiff in all the plaint A to D Schedule properties; to direct the defendants to deliver the plaint A and B Schedule properties to the plaintiff; to direct the 1st defendant to deliver the plaint C Schedule properties in specie or to pay their value; to account for the plaint D Schedule cash and to direct the defendants to pay future mesne profits on the plaint B Schedule properties; or in the alternative to direct the 1st defendant to deliver item 2 of plaint A Schedule and all the items of plaint B Schedule; to account for the plaint C and D Schedule movable properties; to create a charge on items 1 and 3 of plaint A Schedule property for the sums payable by the 1st defendant to the plaintiff;
(b) to grant costs of suit; and
(c) to grant such other and further reliefs as the Honourable Court may deem fit and proper in the circumstances of the case.
The said plaintiff died and T. Ramchandra Rao, V. Sarojini Devi and L. Usha Rani, were brought on record as the legal representatives of the deceased 1st plaintiff and the 3rd plaintiff also died and defendants 14 to 16 were added as legal representatives of the 3rd plaintiff as per orders in I.A. No. 826/95 dated 28-9-1995. The learned Judge on the strength of the respective pleadings of the parties had settled the Issues and additional Issues, recorded the evidence of P. W. 1 to P. W.5 and D.W.1 to D.W.9, marked Exs.A-1 to A-28, Exs.B-1 to B-5 and Ex.X-1 and ultimately partly granted the alternative relief. The decree made therein and the contents thereof are as hereunder:
1. that it is declared that the right and title of the plaintiff in respect of plaint A and B Schedule is hereby dismissed without costs.
2. that it is declared that the suit in respect of alternative relief be and the same is hereby allowed separately without costs declaring that the plaintiffs and defendants 14 to 16 are the owners of item 2 of plaint A Schedule and all the items of B Schedule except two acres in item No. 4 of B Schedule and they are entitled to symbolical possession only in respect of item No. 2 of A Schedule and all items of B Schedule except Ac.2-00 of land in item No. 4 of B Schedule since admittedly the tenants are there.
3. that it is further declared that the plaintiffs and defendants 14 to 16 are entitled to take compensation deposited in O.S No. 93/80 and 86/80 on the file of Principal Sub-Court, Rajahmundry.
4. that it is further declared that D-1 and D-11 are liable to account for the profits in respect of item No. 2 of plaint A Schedule.
5. that it is further declared that the profits as per the above clause shall be ascertained on a separate application.
6. that it is hereby ordered that the rest of the claims of the plaintiff in the alternative reliefs be and the same is hereby dismissed without costs.
Aggrieved by the said Judgment and decree partly decreeing the suit, the present Appeal is preferred.
3. One Thota Laxmi Devi w/o. Thota Ramachander Rao, filed A.S. MP. No. 15290/ 2004 under Order 1 Rule 10 of the Code of Civil Procedure to implead her as a party as respondent No. 19 being the necessary party on the ground that she is the daughter-in-law of the original plaintiff and her mother-in-law executed a Will dated 16-12-1976 bequeathing certain rights in her favour and hence she may have to be impleaded as a party. Counter affidavit is filed by certain of the respondents opposing the said application.
4. Submissions made by Sri Venkat Rap: Sri Venkat Rao, the learned Counsel representing the appellants herein had made elaborate submissions on the aspect of the Clauses incorporated in Ex.B-1 and whether the testator had created absolute interest or life interest in favour of late Suseela Devi and on the question whether the condition relating to adoption is a condition precedent for the validity of the bequest made in favour of 13th defendant and whether the same is as persona designata and how to interpret the said Clauses especially in the light of Sections 88, 112 and 113 of the Act. The learned Counsel also had taken this Court through the findings recorded by the trial Court and would contend that though the plaintiff and the legal representatives of the plaintiff had taken the stand that Ex.B-1 is a forged document, the same had been proved in accordance with law. The learned Counsel also would maintain that though Ex.B-2 also was denied the same is not on serious contest. However Ex.B-2 also was proved in accordance with law. The learned Counsel would maintain that the adoption is not a condition precedent and the 13th defendant would be entitled to the properties as persona designate. The Counsel also would maintain that while interpreting the document all the clauses to be harmoniously construed and repugnancy to be avoided as far as possible. The learned Counsel also would contend that absolutely there is no repugnancy or there are no irreconcilable Clauses in the Will Ex.B-1. Even otherwise the learned Counsel would maintain that no specific pleas had been taken in this regard. However, certain findings had been recorded by the trial Court without specific pleas being taken in this regard. The learned Counsel also had explained the language employed in Ex.B-1 and also had taken this Court through Ex.B-2 and the other oral and documentary evidence and would maintain that in the facts and circumstances of the case and also in the light of the legal position as reflected from the several decisions relied upon by him, the bequest Ex.B-1 to be held to be valid and the suit of the plaintiffs to be dismissed in toto.
5. Submission of Sri Challa Dhanamjaya: Sri Challa Dhanamjaya, the learned Counsel representing one of the legal representatives of the plaintiff had taken this Court through the contents of Ex.B-1 and would contend that absolute rights had been confirmed on the wife by the said Rama Rao and the creation of successive legatees is impermissible in law. The learned Counsel also had taken this Court through several provisions of the Act in general and Sections 83, 88, 93, 112 and 113 of the Act in particular. The learned Counsel would maintain that the intention of the testator may have to be looked into and absolute rights had been given to the wife Suseela Devi under Ex.B-1. The learned Counsel also would maintain that the bequest in favour of an unborn child is void in view of the clear language of Section 112 of the Act. The learned Counsel also had taken this Court through the findings recorded by the trial Court in general and the findings recorded at para-24 of the Judgment in particular and would contend that in the facts and circumstances the said findings do not suffer from any legal infirmity whatsoever and are liable to be confirmed.
6. Submissions of Sri Ramana Murthy: Sri Ramana Murthy, the learned Counsel representing the legal representatives would maintain that in view of the fact that one of the legal representatives of the original plaintiff died, the legal representatives were brought on record. The learned Counsel had taken this Court through the averments made in the plaint in general and paras (e) and (f) in particular. The learned Counsel also would maintain that all the facts and circumstances had been taken into consideration and only decree was granted to some extent. By virtue of Ex.B-1, the Counsel would maintain that the wife of the testator Suseela Devi would get absolute estate. At the best even if the evidence on record to be accepted, the 1st defendant would be in the position of a foster son and by virtue of his legal status as a foster son he would not be entitled to any of the properties left by the deceased testator Rama Rao in the absence of Ex.B-1 since as foster son he would not get any rights whatsoever. The learned Counsel also had explained the provisions of the Hindu Succession Act, 1956 in detail and Section 15 of the said Act in particular. While further elaborating his submissions, learned Counsel also pointed out to the Clauses in Ex.B-1 and had commented that even on a cursory glance of the Clauses the bequest is void by virtue of Sections 112 and 113 of the Act. The Counsel also placed reliance on certain decisions to substantiate the submissions.
7. Submissions of Sri Satyanarayana: Sri Satyanarayana, the learned Counsel representing Smt. Anjanadevi Satyanarayana, the Counsel on record representing the 14th respondent, an alienee, would maintain that the 1st defendant sold the property to the 14th respondent who is the 11th defendant. The learned Counsel also had drawn attention of this Court to Sections 84 and 87 of the Act and also would contend that certain decisions relied upon by Sri Challa Dhanamjaya cannot be treated as binding precedents since the said decisions were rendered in ignorance of the provisions or without considering the relevant provisions underthe Act and hence such decisions to be held as per incurierm. The Counsel also explained the bequest in favour of an unborn person and also the principles in relation thereto commencing from Tagore v. Tagore 1872 Indian Appeal (supp.) 47. The learned Counsel also placed reliance on certain decisions to substantiate his contentions.
8. Submissions of Sri Nagesh: Sri Nagesh, the learned Counsel representing the petitioner in A.S.M.P. No. 15290/2004 would maintain that it is true that the daughter-in-law of the original plaintiff is trying to come on record after sufficiently a long lapse of time, but she came to know about the existence of the Will and the bequest made in her favour also only recently and hence since her rights also would be affected she is a necessary party to the present action and hence the application may have to be allowed. The learned Counsel also had taken this Court through the contents of the Will which was filed along with the application and would maintain that when a party is having direct interest in the properties such a party is bound to be impleaded being a necessary party to the suit to avoid multiplicity of litigations.
9. Heard the Counsel on record.
10. The following Points arise for consideration in the present Appeal:
1. Whether Ex.B-1 and Ex.B-2, the Wills said to have been executed by Gadireddy Rama Rao and his wife Suseela Devi are true, valid and binding on the original plaintiff and her legal representatives?
2. Whether interest created or bequest made in favour of late Suseela Devi by Gadireddy Rama Rao under Ex.B-1 Will is an absolute interest or life interest only?
3. Whether in view of the recitals made in Ex.B-1 adoption can be said to be a condition precedent in relation to the validity of bequest made in favour of the 13th defendant/appellant herein?
4. Whether the bequest made in favour of 13th defendant is in his capacity as persona designatal
5. Whether the bequest made in favour of 13th defendant under Ex.B-1, an unborn person, as on the date of death of Gadireddy Rama Rao, would be hit by Sections 112 and 113 of the Indian Succession Act, 1925?
6. Whether the original plaintiff is entitled to maintain the action by virtue of the provisions of Hindu Succession Act, 1956?
7. Whether the findings recorded by the trial Court in relation to Exs.B-1 and B-2 are to be confirmed or in any way to be disturbed by this appellate Court?
8. Whether the application filed to implead her as a party by the daughter- in-law of the original plaintiff as 19th respondent in the Appeal in A.S.M.P. No. 15290/2004 to be allowed in the facts and circumstances explained by the said party?
9. Can it be said that the daughter-in-law, the proposed party, is a necessary party to the litigation in the facts and circumstances of the case?
10. If so to what relief the parties would be entitled to?
11. Point No. 1: This Point would cover all the other Points since in the said Point, while answering the same, the validity of both Ex.B-1 and Ex.B-2 would be decided. Before proceeding to appreciate the oral and documentary evidence available on record, it would be appropriate to have a look at the contents of Exs.B-1 and B-2 at the threshold. Ex.B-1, dated 28-11 -1975 said to have been executed by Gadireddy Rama Rao reads as hereunder:
(Editor: The text of the vernacular matter has not been reproduced.
Likewise, Ex.B-2, dated 23-9-1978 said to have been executed by Suseela Devi w/o. Gadireddy Rama Rao reads as hereunder:
(Editor: The text of the vernacular matter has not been reproduced.
Though there is no serious controversy relating to Ex.B-2 there is serious dispute relating to the validity of Ex.B-1. It is true that the original plaintiff and the legal representatives of the said plaintiff had taken the stand that both Gadireddy Rama Rao and Suseela Devi died intestate only and hence the testamentary dispositions had been specifically denied. Respondents 1 to 4 herein are the original plaintiff and the legal representatives. As already referred to supra, the suit was instituted by the 1st respondent only and she died during the pendency of the suit and the legal representatives were added and again one of the legal representatives plaintiff No. 3 also died and, her legal representatives, respondents 16 to 18, were added as defendants 14 to 16 in the suit. Defendants 2 to 9 in the suit, shown as respondents 5 to 12 herein, have been the tenants in certain of the properties. The 10th defendant in the suit, 13th respondent herein, is the sister of the 1st appellant herein, the 1st defendant in the suit and legatee under Exs.B-1 and B-2 to an extent of Ac. 1-00 under the Will. The 11th defendant/14th respondent is the purchaser of item No. 2 of the plaint A schedule property. 15th respondent is 12th defendant, brother's son of Gadireddy Rama Rao. For better appreciation of the factual controversy between the parties also it may be appropriate to have a look at the respective pleadings of the parties, the issues and the additional issues settled by the trial Court and the findings recorded in this regard by the trial Court before further discussing the validity of Exs.B-1 and B-2.
12. The original plaintiff pleaded in the plaint as hereunder:
Gadireddy Lakshmana Rao, Rama Rao and Narasimha Rao are sons of one Lakshminarayana. He is one of the richest landlord of Rajahmundry town. The plaintiff is the only daughter of the said late Lakshminarayana and is the sister of the said three brothers. The above said three brothers divided their joint family properties and the plaint Schedule properties fell to the share of late Rama Rao. The said Rama Rao and his wife Suseela Devi have no issues and the 1st defendant who is no other than the sister's son of Susheela Devi used to reside along with Rama Rao and Suseela Devi and the said Rama Rao educated him. During the life time of Rama Rao and after his death his wife Suseela Devi used to take the advice and assistance of Sri Gadireddy Lakshminarayana who is the natural son of Lakshmana Rao and adopted son of Narasimha Rao, the other two brothers of Rama Rao. The said Gadireddy Rama Rao died intestate leaving behind him his wife Suseela Devi as heir under law and so all the scheduled properties devolved upon his wife Suseela Devi as the sole surviving heir under Hindu Law and she enjoyed the same absolutely, openly, publicly and without any interference by anybody. As already submitted the said Susheela Devi used to take the advice of Lakshminarayana in important matters. Even after the death of Rama Rao the 1st defendant used to reside in the house shown as item (1) of plaint A Schedule along with Suseela Devi as he is no other than her sister's son. Even after the death of Suseela Devi the 1st defendant is residing along with his natural father and brothers in that house. Defendants 2 to 9 are the tenants and ryots of the properties shown in plaint A and B schedules.
The said Suseela Devi, wife of Rama Rao fell ill before her death and with the active support of his father and brothers, the 1st defendant without informing any relations of late Rama Rao removed Suseela Devi in the first week of April, 1979 to the Government Hospital, Rajahmundry and later to Kakinada where she died on 9-4-1979. Lakshminarayana who is no other than the husband's brother of Suseela Devi against whom late Rama Rao had regard and confidence was also not informed by the 1st defendant even though he is available in Rajahmundry at that time. The plaintiff was also not informed about the illness or subsequent death of Suseela Devi. It seems at the time of her death Suseela Devi used to wear some of the gold ornaments mentioned in the plaint C Schedule and the said Lakshminarayana who performed the obsequies of Suseela Devi found only one pair of gold bangles, one chain and two ear studs on the body and when questioned by him the 1st defendant and his father represented that they safely kept the other jewels mentioned in the C Schedule in iron safe and he need not be worried. The jewels found on the body of Suseela Devi i.e., one pair of bangles, one chain and two ear studs were removed at the burial ground and were taken out by the father of the 1st defendant and they were kept with the 1st defendant. The said Lakshminarayana suspected the movements of the 1st defendant and his father and brothers and demanded the keys of the iron safe to verify about the cash mentioned in the D Schedule and the jewels mentioned in the C Schedule as before her death Suseela Devi sold away some of the properties for cash consideration. By the date of the death of Suseela Devi an amount of Rs. 45,000/- is lying in the Bank account and that was taken away by the 1st defendant from the Bank. It is also noticed by some of the relations of Suseela Devi and Rama Rao that on the night of 9-4-1979 the 1st defendant along with his father and brothers opened the doors of the house where Suseela Devi used to reside when she was admitted in the Hospital clandestinely and went away after one hour with a box in their hands. After the obsequies of the tenth day ceremony were over when Lakshminarayana questioned their inaction on the night of 9-4-1979 the 1st defendant and his father promised to show all the articles and cash mentioned in C and D schedules and so the said Lakshminarayana kept quiet without demanding the production of the same immediately butto prevent further fraud locked the room where the iron safe was kept. The 1st defendant and his father gave evasive answers for the removal of the valuable articles mentioned in the plaint C Schedule and the cash mentioned in the plaint D Schedule by them when questioned by Lakshminarayana after the tenth day ceremony of Suseela Devi. The 1 ""defendant, his father and brothers were alone present during the last few days prior to the death of Suseela Devi and were in possession of the keys of the iron safe and other valuable properties and so the 1st defendant is accountable for the return of the articles mentioned in the plaint C Schedule in specie or the value thereof and for the cash mentioned in the plaint D Schedule to the plaintiff.
Suseela Devi died intestate and after her death all the properties mentioned in all the Schedule devolved upon the plaintiff as the sole surviving heir under Hindu Succession Act as the Schedule properties originally belong to the estate of Rama Rao and as there are no Class I or Class II heirs under Hindu Law to Suseela Devi. The plaintiff is the only heir of late Rama Rao who is' entitled to succeed to the estate of late Rama Rao. After the obsequies are over Lakshminarayana who is no other than the brother's son of Rama Rao against whom late Rama Rao and Suseela Devi reposed confidence suspected the bona fides of the 1st defendant, his father and brothers and so reported the matter to the police for their unauthorized removal of the C Schedule movables and D Schedule cash and when questioned by the police the 1st defendant proclaimed that Suseela Devi executed a Will and gave a copy of it to the said Lakshminarayana. Even according to the recitals in the said Will there is one bequest in favour of the 1st defendant in regard to items 1 and 3 of A Schedule and another bequest in favour of 10th defendant for Ac. 1-00 of land in item 4 of B Schedule nothing more and the other properties were left over and no bequest was made in favour of anybody. There is no necessity for Suseela Devi to execute any Will or she never contemplated to execute any Will much less with a bequest in favour of the 1st defendant and the original was not shown to anybody and a reading of the copy which is given to Lakshminarayana gives a doubt about the genuineness and validity of the same and the plaintiff suspects and has reason to believe that it is a forged one or because of the inducement and undue influence of the 1st defendant against Suseela Devi she was made to execute such a document. It is further submitted that either late Rama Rao or his wife Suseela Devi never intended to adopt the 1st defendant as recited in the alleged Will said to have been executed by late Suseela Devi and the said recital is itself a pointer that late Suseela Devi never executed any Will or much less the alleged Will in a sound and disposing state of mind. Later it seems the 1st defendant gave notices to some of defendants 2 to 9 who are tenants in plaint A and B Schedule properties demanding rents from them claiming as the legatee under the Wills executed by late Rama Rao and Suseela Devi. As already submitted late Rama Rao never executed any Will bequeathing any property to anybody or muchless to the 1st defendant. In the eye of law the 1st defendant is only an intruder of the plaint Schedule properties without any valid right and the plaintiff who is the legal heir and who is no other than the sister of late Rama Rao is entitled to all the plaint Schedule properties and as well as the properties of Suseela Devi enjoyed by her only by inheritance as a heir to her husband.
Afterthe death of Suseela Devi the plaintiff came to know about the activities of the 1st defendant through the said Gadireddy Lakshminarayana who is the brother's son of late Rama Rao and got issued a registered notice not only to the 1st defendant but also to other defendants who are the tenants in the plaint A and B Schedules on 2-9-1979 demanding the 1st defendant to deliver all the plaint A and B Schedule properties and to account for the plaint C and D Schedule properties and the 1st defendant after receiving the said notice gave a false and untenable reply repudiating his liability either to deliver plaint A and B Schedule properties or to render an account for plaint C and D Schedule properties inter alia relying upon the alleged Wills which late Rama Rao was alleged to have executed on 28-11 -1975 and late Suseela Devi alleged to have executed on 23-9-1978. As already submitted either late Rama Rao or late Suseela Devi never executed any Will or much less the Will referred to in the reply notice given by the 1st defendant in a sound and disposing state of mind and the plaintiff who is a heir under law after the death of Suseela Devi for the estate of late Rama Rao is entitled to recover the plaint Schedule properties from the 1st defendant. Even otherwise even if Rama Rao executed a Will as alleged by the 1st defendant in the reply notice the recitals go to show that an absolute estate was given to his wife Suseela Devi and in the later part of the Will put a clog on restriction about the absolute enjoyment of Suseela Devi giving the properties if any remaining after the death of Suseela Devi and those properties should be enjoyed for his life by the 1st defendant and a vested remainder with absolute rights was given to the eldest male born child of the 1st defendant who will be educated by Suseela Devi if that adoption did not take place during the life time of Rama Rao. It is submitted that when an absolute estate was given to a legatee under a Will there is no question of giving life estate after the absolute estate and further more there will not be any absolute estate after that life estate holder. Even to-day the 1st defendant is not married and there is no question of any adoption even by Suseela Devi during her life time of a first born male child of the 1st defendant and giving absolute estate after the life time of the 1st defendant. As the 1st defendant is unmarried it became impossible for the enforcement of that particular clause in the alleged Will of late Rama Rao and as there is no life estate after the absolute estate was given to a legatee the alleged Will said to have been executed by late Rama Rao is invalid to that extent and if really late Rama Rao executed the Will referred to by the 1st defendant all the properties were given absolutely by late Rama Rao to his wife Suseela Devi and Suseela Devi is entitled absolutely to enjoy. If that is the effect of the Will of late Rama Rao the same is the effect even if that Will is not there as Suseela Devi as Class I heir is entitled to succeed to the estate of late Rama Rao as absolyte owner. In any view whether that Will of Rama Rao is in existence or not the effect of enjoyment of Suseela Devi is one and the same and she will get the Schedule properties absolutely and in fact she enjoyed the same absolutely without any interference. Regarding the execution of the Will by late Suseela Devi before her death, as already submitted it is not the intention of Suseela Devi as late Rama Rao or Suseela Devi never intended to adopt the 1st defendant and the alleged Will might be the result of undue influence and fraud played by the 1st defendant against Suseela Devi and she might have been made to execute such a Will in his favour as stated above.
Inspite of the passing of the registered notices the 1st defendant refused to deliver plaint A and B Schedule properties and account for plaint C and D Schedule properties and he is collecting rents from the tenants i.e., defendants 2 to 9. Defendants 2, 4 and 7 are tenants in item 2 of A Schedule. 3rd defendant is a tenant in item 1 of A Schedule. 5th defendant is the tenant of item 3 of B Schedule. 6th defendant is the tenant of the land in item 4 of B Schedule while defendants 8 and 9 are tenants of the two shops on the road side in it. It is learnt that the 1st defendant sold away the house in item 2 of A Schedule to the 11th defendant recently and the said sale is not binding on the plaintiff. The 11th defendant is bound to deliver possession of the same. The plaintiff also learnt that the shop in item 3 of A Schedule is sold to the tenant the 5th defendant and the said sale is also not binding on the plaintiff. He is bound to deliver possession of the same to the plaintiff and the plaintiff is entitled to them ignoring the said sale.
It is submitted that the Government acquired item 3 of the plaint B Schedule for purposes of quarrying stone for barrage works in two instalments i.e., the first instalment is in respect of Acs. 2.53 cents and the second instalment is in respect of the balance of item 3 of the plaint B Schedule. Regarding the first instalment a compensation of Rs. 90,675-20 ps. is awarded even during the life time of Suseela Devi and she did not receive the amount and as the compensation awarded is low she put in an application for enhancement of compensation. In respect of the second instalment of the balance of the land in item 3 the Land Acquisition Officer awarded a sum of Rs. 1,05,456/- and by that time Suseela Devi expired. Gadireddy Lakshminarayana whose land was also acquired along with the land of Suseela Devi and Rama Rao preferred an application under Section 18 of the Land Acquisition Act claiming higher compensation in respect of the land acquired and also in respect of the land belonging to Rama Rao and Suseela Devi. The Government referred the matter to the Civil Court in respect of the compensation of the two instalmental acquisitions in respect of item 3 of B Schedule and they are now pending as O.P. Nos. 93/80 and 86/80. In O.P. No. 93/80 the amount deposited is Rs. 90,675-20 ps. and in O.P. No. 86/80 the amount deposited in Rs. 1,05,456-00. The plaintiff filed an application in O.P. No. 86/80 to implead her as a party in O. P. and the same was dismissed by the Court. In both the O.Ps. the 1st defendant is claiming compensation basing on the two Wills alleged by him and as detailed above. The 12th defendant is also a claimant in the said two O.Ps. even though he is not entitled to any amount, for a full fledged enquiry of the rights of parties in the matter, he is added as 12th defendant in the suit. The plaintiff is entitled to the amounts covered by those two O.Ps. and also to the higher compensation that may be awarded in respect of the said acquisition representing the value of item 3 of the B, Schedule and the 1st defendant is not entitled.
13. A written statement in detail was filed by the 1st defendant denying the allegations. It was pleaded by the 1st defendant as hereunder:
The allegation that during the life time of Rama Rao and after his death his wife Suseela Devi use to take the advise and assistance of Gadireddy Lakshminarayana who is the natural son of Lakshmana Rao and adopted son of Narasimha Rao is false. It is equally false to allege that Gadireddy Rama Rao died intestate leaving behind him his wife Suseela Devi and all the Schedule properties devolved on her as the sole surviving heir. It is true that the 1st defendant is the sister's son of late Suseela Devi. The 1st defendant was brought up by the late Rama Rao and his wife Suseela Devi since his childhood. They both in fact though of adopting the 1st defendant but neglected to perform the adoption ceremony. The 1st defendant in fact was treated by both of them as their foster son. The 1st defendant was treating both of them as his parents irrespective of the fact that no adoption ceremony took place. Late Rama Rao and his wife Suseela Devi centered round all their affections only on the 1st defendant.
Late Gadireddy Rama Rao executed the registered Will dated 28-11-1975 in a sound and disposing state of mind. The said Will is his last Will and testament. As per the terms of the said Will late Rama Rao bequeathed all his properties to his wife Suseela Devi to be enjoyed by her absolutely and if any properties remain by the date of her death the same to be devolved on the 1st defendant to be enjoyed by him for the life and after his death to be devolved on the 1st male issue of the 1st defendant to be enjoyed by him absolutely. In view of the terms of the said registered Will dated 28-11-1975 executed by late Gadireddy Rama Rao, the plaintiff or anybody else is not entitled to claim any of the properties of late Rama Rao. The allegations that Suseela Devi w/o. Rama Rao fell ill before her death and with the active support of his father and brothers the 1st defendant without informing any relations of late Rama Rao removed Suseela Devi in the first week of April, 1979 to the Government Hospital, Rajahmundry and later to Kakinada where she died on 9-4-1979 are false and invented. When late Suseela Devi fell sick her brother who is a Doctor was informed of her sickness and he attended on her and in fact he admitted her in the Hospitals at Rajahmundry and Kakinada. All the near relatives of Rama Rao and Suseela Devi were informed of her sickness including the 12th defendant in the suit.
Late Suseela Devi also executed registered Will dated 23-9-1978 in a sound and disposing state of mind. The said Will is her last Will and testament. Late Suseela Devi realizing that the 1st defendant was not given any property absolutely by the husband executed the said registered Will dated 23-9-1978 bequeathing to the 1st defendant Items 1 and 3 of A Schedule absolutely. Late Rama Rao bequeathed to the 10th defendant Ac. 1-00 cents of land out of the land situate in Palacharla village. Late Suseela Devi also bequeathed to the 10th defendant Ac. 1-00 cents of land out of the land bearing S. Nos. 501/2 and 502/1 situate in Palacharla village to be enjoyed by her with absolute rights. The 1st defendant is thus having life estate in all the movables and immovable properties left by late Gadireddy Rama Rao and his wife Suseela Devi except the items covered by the Will dated 23-9-1978 executed by late Suseela Devi. The 1st defendant is having absolute rights in items 1 and 3 of plaint A Schedule and the 10th defendant is entitled to Ac. 1-00 cents of land in the lands bearing S. Nos. 501 and 502/1 of Palacharla village absolutely.
The allegations in the plaint that at the time of the death of Suseela Devi some of the gold ornaments mentioned in the C Schedule were found on the body of the Suseela Devi by Lakshminarayana who performed the obsequies of Suseela Devi etc., are all false. Lakshminarayana did not perform the obsequies of Suseela Devi. There was no occasion for the said Lakshminarayana to question the father of the 1st defendant about the gold jewels. It is equally false to allege that the father of the 1st defendant represented that the gold jewels were kept in the iron safe. Late Suseela Devi possessed only one gold chain and five bangles and ear studs by the date of her death. She did not possess any of the jewels mentioned in plaint C Schedule except the articles given above. The entire list of jewels given in C Schedule is pure imagination of the plaintiff and her advisers. None of the jewels other than the jewels mentioned above are existing. Late Suseela Devi did not die possessing the jewels mentioned in C Schedule except the jewels mentioned above. It is false to allege that it was noticed by some of the relations of Suseela Devi and Rama Rao that on the night of 9-4-1979 the 1st defendant along with his father and brother opened the door of the house where Suseela Devi used to reside when she was admitted in the Hospital and clandestinely took away a box. It is also equally false to allege after the obsequies on the tenth day ceremony was over when Lakshminarayana questioned their action the 1st defendant and his father promised to show all the articles and cash mentioned in C and D schedules. Neither the 1st defendant nor his father removed any articles from the house as alleged at any time. Lakshminarayana did not question the 1st defendant or his father either in the manner alleged or otherwise. In fact it is only the 1st defendant who performed the obsequies of Suseela Devi and not Lakshminarayana. The silver articles shown as item 2 of plaint C Schedule were not possessed by late Suseela Devi. She died possessed of only one silver plate weighing about 100 tulas. There were no silver tumblers or glasses. The ordinary utensils mentioned in item 3 of plaint C Schedule are almost all existing but the number of articles given is incorrect. There are only three fans. It is true that an amount of Rs. 45,000/- was lying in fixed deposit in the joint names of the 1st defendant and late Suseela Devi which is a either or survivor deposit. Late Suseela Devi is also having a saving account No. P-465 in the State Bank of India and an amount of Rs. 580-69 ps. is lying in deposit to her credit in the said account. The plaintiff is not entitled to claim the said amount.
The allegations in para 3 (d) of the plaint are false and trumped up. Late Suseela Devi did not die in testate and the properties did not devolve on the plaintiff as the sole surviving heir to the estate of late Rama Rad. In view of the registered Wills executed by late Rama Rao and late Suseela Devi the properties left un disposed of by Suseela Devi have to go to the 1st defendant for his life and afterwards to his first born male issue. The legal submissions made in the plaint that the further clause in the Will of Rama Rao that the remaining properties should rest in the 1st defendant is a clog on the enjoyment and is therefore invalid etc. are all incorrect. There is no restriction whatsoever incorporated in the Will on the enjoyment of the properties absolutely by late Suseela Devi and if only she does not dispose them off the later clause comes into operation, the later clause in the Will of late Rama Rao clearly confers a right in the 1st defendant and as such the 1st defendant is entitled to all the properties remaining after the death of Suseela Devi. The further allegations interest plaint that there was no necessity for Suseela Devi to execute any Will or she never contemplated to execute any Will much less with a bequest in favour of the 1st defendant etc., are all false. It is equally false to allege that the Will dated 23-9-1978 executed and registered by late Suseela Devi is a forged one or obtained by the 1st defendant by inducement and undue influence, it is also false to allege that either late Rama Rao or his wife Suseela Devi never intended to adopt the 1st defendant as recited in the Will executed by late Suseela Devi. Late Suseela Devi executed the said Will in a sound and disposing state of mind and out of her volition and free will. The plaintiff is not entitled to question the truth and genuineness of the Wills executed by late Rama Rao and his wife Suseela Devi. The plaintiff and all other near relations of late Rajjia Rao and Suseela Devi are fully aware of the execution of the said two Wills and the 1st defendant's rights in the properties left by them. Several factual and legal submissions made in para 3 (e) of the plaint are false and misconceived. As submitted supra in view of the terms of the Wills executed by late Rama Rao and his wife Suseela Devi. The plaintiff cannot claim any of the properties left by late Rama Rao and his wife Suseela Devi. The allegations in para 3 (f) are not true and correct. The 1st defendant is residing in Item 1 of 'A' Schedule. The 3rd defendant is in occupation of a portion of Item 1 of A Schedule since one year and is paying Rs. 185/- as rent per month. The defendants 2, 4 and 7 are the tenants in occupation of Item 2 of A Schedule. They never paid rents to the 1st defendant after the death of Suseela Devi on the instigation of the 12th defendant. It is true that the 6th defendant is the tenant of item 4 of B Schedule on an yearly rent of Rs. 600/-. He never paid rent to the 1st defendant after the death of Suseela Devi at the instigation of the 12th defendant. It is also true that defendants 8 and 9 are in occupation of portions of item 4 adjoining the public road by erecting sheds. Both the defendants 8 and 9 are also not paying rents to the 1st defendant at the instigation of the 12th defendant. It is true that the 5th defendant was the tenant of item 3 of A Schedule. The 1st defendant sold away Item 3 to the 5th defendant about two years back and executed a registered sale deed in his favour. It is true that the 1st defendant sold away Item 2 of A Schedule to the 11th defendant about one year back and executed a registered sale deed in her favour. The plaintiff is not entitled to question the said sales. Items 1, 2 and 5 of B Schedule are not income yielding. As stated in the plaint Item 3 is acquired by the Government. The compensation awarded is in deposit in O.P. No. 86/80 which is pending. The plaintiff is not entitled to clam the compensation in deposit to the credit of O.P. No. 86/80. The plaintiff is not entitled to claim any of the plaint scheduled properties nor is she entitled to claim rendition o accounts from the 1st defendant.
14. The 10th defendant adopted the written statement of the 1st defendant. The 13th defendant also adopted the written statement of the 1st defendant and also pleaded certain additional facts.
15. The 4th defendant claiming to be the statutory tenant in relation to item No. 2 of plaint A Schedule property filed a written statement how the disputes arose between the 11th defendant and the 1st defendant regarding the said item. The 4th defendant also pleaded about R.C.C. No. 17/81 and R.C.C. No. 22/81 on the file of the learned Rent Controller, Rajahmundry.
16. The 2nd defendant adopted the written statement of the 4th defendant.
17. The 5th defendant filed a written statement admitting the relationship between the parties and taking a stand that Gadireddy Rama Rao and his wife Suseela Devi had no children and the 1st defendant, sister's son of Suseela Devi, was fostered by Gadiredy Rama Rao and Suseela Devi and he was treated as Abhimana putra during their life time. It was also pleaded that Gadireddy Rama Rao executed a registered Will dated 28-11-1975 in a sound disposing state of mind and he bequeathed all his properties to his wife Suseela Devi with absolute rights except Ac. 1-00 of land in Palacharla village which was bequeathed to his fostered daughter Sowbhagya Lakshmi, the 10th defendant. The 5th defendant also narrated other details in the written statement but pleaded he is not aware of the particulars of the plaint C and D Schedule properties and this defendant is concerned only with respect to item 3 of plaint A Schedule. The relevant portion of the pleading is at para-7 wherein this defendant pleaded as hereunder:
The 5th defendant took Item 3 of the plaint A Schedule shop on lease as long back as on 16-12-1955 from Gadireddy Narasimha Rao when the said Narasimha Rao, his brothers Rama Rao and Lakshmana Rao were joint and ever since he had been continuing in the said shop as a lessee. After this property was allotted to the share of late Rama Rao the 5th defendant has been continuing as a lessee of the said Rama Rao and after him his wife Suseela Devi. When a part of the said building was removed during the main road extension scheme, it required reconstruction and he was approached by Gadireddy Suseela Devi for advancement of monies for the reconstruction and on 10-10-1978 a fresh agreement was entered into between him and late Gadireddy Suseela Devi under which it was agreed was he had to pay a rent of Rs. 250/- per month for the first three years and Rs. 300/- per month for subsequent two years and he also advanced to the said Suseela Devi Rs. 9,000/- besides further advances and ever since this defendant was continuing as a lessee of late Gadireddy Suseela Devi. After the death of Suseela Devi as the 1st defendant became the absolute owner of the said property by virtue of the Will executed by late Suseela Devi the 5th defendant had attorned to him. While so the 1st defendant as the absolute owner of the said property put up for sale and the 5th defendant and his wife Lakshmi Narasamma purchased the said Item 3 of plaint A Schedule shop from the 1st defendant under a registered sale deed dated 14-7-1980 for Rs. 45,000/-. Out of the sale consideration of Rs. 45,000/- the 5th defendant's wife paid Rs. 3,000/- to 1st defendant on 14-6-1980 when the agreement of sale was entered into by the 5th defendant and his wife with the 1st defendant and Rs. 9000/- previously paid to late Gadireddy Suseela Devi was also given credit to and out of the remaining balance of Rs. 33,000/-, the 5th defendant paid Rs. 13,500/- and his wife Lakshmi Narasamma paid Rs. 19,500/- to the 1st defendant before the Sub-Registrar when the sale deed was registered. Thus the 5th defendant and his wife became absolute owners of the said property having purchased from the 1st defendant. The 5th defendant and his wife ever since the said sale deed had been in continuous occupation of the said shop as owners thereof. The plaintiff has absolutely no right to demand possession of the said item of the property. After the purchase of the said item of the property. After the purchase of the said item of the property the 5th defendant and his wife improved it much by investing Rs. 2,000/-. The 5th defendant and his wife are bona fide purchasers for valuable consideration and the plaintiff has absolutely no right to claim any relief against them.
18. The 7th defendant filed a written statement pleading that the said defendant was inducted as tenant by Gadireddy Narasimha Rao, used to collect rents from this defendant and after his death his wife used to collect rent and afterwards this defendant was informed that the properties had been partitioned and this item of property fell to the share of his brother Rama Rao and after the death of Rama Rao his wife used to collect rent and after the death of Rama Rao's wife his son Sivaram, the 1st defendant used to collect rents. This witness also pleaded about R.C.C. No. 18/81 and the other facts.
19. The 11th defendant filed a written statement in detail virtually taking the same stand which the 1st defendant had taken. It was also pleaded that the plaintiff is not the nearest legal heir to late Gadireddy Suseela Devi and she is not entitled-to recover Item 2 of the plaint A Schedule property.
20. The 14th defendant filed a written statement taking a stand that Gadireddy Rama Rao and Gadireddy Suseela Devi died intestate. The 14th defendant virtually supported the case of the plaintiff relating to the validity of the Wills.
21. A memo of adoption was filed by defendants 15 and 16 adopting the written statement filed by the 14th defendant.
22. In view of the written statement filed by the 13th defendant adopting the written statement of the 1st defendant and taking a stand that by virtue of the terms of registered Will executed by Gadireddy Rama Rao, the 13th defendant is entitled to all the properties left by Rama Rao, a rejoinder was filed by the 2nd plaintiff denying the allegations and taking a stand that the mother/guardian/next friend could not have any knowledge about the documents propounded by the 1st defendant and she is not competent to speak anything about the Wills.
23. On the respective pleadings of the parties, the following Issues and additional Issues were settled :
Issues framed on 18-11-1982:
(1) Whether the 5th defendant and his wife are bona fide purchasers of item 3 of plaint schedule property for valuable consideration and made improvements and if so whether they are entitled to any equities?
(2) Whether late Gadireddy Rama Rao and his wife Suseela Devi died intestate leaving the plaintiff as their sole heir?
(3) Whether the Will dated 28-11 -1975 executed by late Gadireddy Rama Rao is true and valid?
(4) Whether the will dated 23-9-1978 executed by the late Gadireddy Suseela Devi is true and valid?
(5) What are the properties left by late Gadireddy Rama Rao and Suseela Devi?
(6) Whether the plaint schedules are correct?
(7) Whether the plaintiff is entitled to the possession of and of the plaint schedule properties and if so to what properties?
(8) Whether the plaintiff is entitled to profits and if so against whom?
(9) Whether the 1st defendant is liable to account and if so in respect of what properties?
(10) To what relief?
Additional issue framed on 25-2-1994:
Whether 13th defendant is entitled to all the properties as per Will dated 28-11-1975?
Additional issue framed on 26-8-1994:
Whether the alienation in favour of 11th defendant is true, valid and binding?
24. As already referred to supra, during the pendency of the suit the original plaintiff died and the legal representatives were brought on record. In turn 3rd plaintiff died and the legal representatives were brought on record as defendants 14 to 16 and during the pendency of the suit the 13th defendant, the son of the 1st defendant who is claiming absolute rights by virtue of operation of Ex.B-1 also had been impleaded. On appreciation of the evidence the trial Court recorded findings in detail and answered Issues 2 to 7 and additional Issue in relation to 13th defendant's entitlement to al the properties as per the Will Ex.B-1, partly in favour of the plaintiffs. While answering Issue No. 1, the trial Court observed that Exs.B-1 and B-2 Wills are true and late Suseela Devi bequeathed items 1 and 3 of A Schedule to the 1st defendant and the 1st defendant sold away item No. 3 of the plaint A Schedule to the 5th defendant and his wife and hence the plaintiffs are not entitled to question the same made in favour of 5th defendant and his wife and accordingly answered the Issue in favour of the 5th defendant and against the plaintiffs. While answering Issue No. 8, the same was answered in favour of the defendants and against the plaintiffs. While answering Issue No. 9 in view of the evidence of P.W.2 it was held that plaintiffs and defendants 14 to 16 are not entitled to claim profits in respect of Ex.B-1 properties and they are entitled to claim profits in respect of item No. 2 of A Schedule only from defendants 1 and 11 and ultimately while answering Issue No. 10 relating to the relief the trial Court held as hereunder:
"In the result, the suit in respect of the main relief of the declaration of the plaintiffs over A and D Schedule properties is dismissed without costs and the suit in respect of alternative relief is decreed partly without costs declaring that the plaintiffs and defendants 14 and 16 are the owners of item No. 2 of A schedule and all items of B Schedule except two acres in item No. 4 of B Schedule and they are entitled to symbolical possession only in respect of item No. 2 of A Schedule and all items of B Schedule except two acres of land in item No. 4 of B Schedule. Admittedly since the tenants are there and it is hereby declared that the plaintiffs and defendants 14 to 16 are entitled to take compensation deposited in O.Ps. 93/80 and 86/80 on the file of Principal Sub-Court, Rajahmundry and it is further declared that D-1 and D-11 are liable to account for the profits in respect of item No. 2 of A Schedule and the profits shall be ascertained on a separate application. The rest of the claims of the plaintiffs in the alternative relief are dismissed without costs".
25. It may be convenient to have a cursory glance at the pedigree of Gadiredy Rama Rao as shown hereunder:
---------------------------------------------------------------------- | | | | Laxmana Rao Rama Rao Narasimha Rao T. Venkataseshu bai
| 1st plaintif f
Suseela Devi (legatee under
Ex.B-1) and testator of Ex.B-2
1st appellant (foster son and legatee under Ex.B-1
for life and legatee under Ex.B-2 with absolute right for some property after lifetime of Suseela Devi)
2nd Appellant s/o. 1st appellant is the legatee under Ex.B-1 with absolute rights after life time of 1st appellant
On appreciation of the evidence though the trial Court came to the conclusion that Exs.B-1 and B-2 in fact were executed by the deceased Gadireddy Rama Rao and his wife Suseela Devi, the validity of Ex.B-1 in the light of Clauses incorporated in Ex.B-1 had been argued at length and certain findings had been invited even before the trial Court. The said findings are being seriously assailed in this Appeal.
26. The suit was originally filed as O.S. No. 42/82 on the fife of Subordinate Judge, Rajahmundry which was renumbered as O.S. No. 9/88 on the file of II Additional District judge, East Godavari, Rajahmundry. P. W. 1 is the 2nd plaintiff, son of the 1st plaintiff and also incidentally the General Power of Attorney holder of his deceased mother, the 1st plaintiff, to look after all her properties and the affairs. P.W.3 is one of the attestors of Ex.B-1 who deposed about certain aspects relating to Ex.B-1. D.W.1 is the 1st defendant and the 10th defendant is his elder sister. He deposed in detail about the family affairs. D.W.4 who was working as a Clerk in Syndicate Bank is one of the attestors of Ex.B-1. D.W.5 is the identifying witness of Ex.B-1, P.W.4 is one of the attestors of Ex.B-2. D.W.2 is the attestor of Ex.B-2 and D.W.3 is the scribe of Ex.B-2. Apart from this evidence, P.W.2, natural son of Lakshmana Rao and the adopted son of Narasimha Rao, the brothers of Gadireddy Rama Rao, was examined. P.W.5, the daughter of Laxmana Rao, was examined. D.W.6 is the brother of Gadireddy Suseela Devi. D.W.7 is the 5th defendant in the suit who purchased item No. 3 of A Schedule from the 1S| defendant and it appears the same was jointly purchased in the name of his wife Laxmi Narasamma. D.W.8 is the husband of the 11th defendant who is said to be looking after the affairs of his wife. D.W.9 is the wife of the 1st defendant and the mother of the 13th defendant. Apart from this oral evidence, the documentary evidence Exs.A-1 to A-28 and Exs.B-1 to B-5 and Ex.X-1 also had been relied upon. In the light of the findings recorded by the trial Court, the learned Counsel representing the respective respondents/plaintiffs also had not advanced serious arguments relating to the execution of Ex.B-2, but however an attempt was made to attack the validity of Ex.B-1 on all available grounds. In the backdrop of the contentions it may be relevant to appreciate the evidence available on record in relation to Exs.B-1 and B-2.
27. It is true that the trial Court had appreciated the whole evidence available on record and recorded certain findings. P.W.1 who is the son of the deceased 1st plaintiff, incidentally added as the 2nd plaintiff, deposed about the details of the family, his sisters and his mother executing Ex.A-1, the registered General Power of Attorney and this witness filing the present suit and the reliefs prayed for in the suit. This witness also deposed that the sons of his maternal grandfather partitioned their joint family property and the plaint Schedule property fell to the share of his maternal uncle Rama Rao. Suseela Devi is the wife of Rama Rao. The 1st defendant is the son of the elder sister of Suseela Devi and his maternal uncle Rama Rao had no issues and he educated Sivaram, the 1st defendant. His maternal uncle Rama Rao died intestate and hence the sole heir of Rama Rao who is his wife Suseela Devi became entitled to said properties by way of inheritance. This witness also deposed about Lakshminarayana, the natural son of his maternal uncle Lakshmana Rao who was adopted by Narasimha Rao since he was also issueless. This witness also deposed that after the death of Rama Rao, Lakhsminarayana became advisor of Suseela Devi, the wife of Rama Rao. This witness further deposed about the 1st defendant residing in the house i.e., item No. 1 of the plaint A Schedule along with Suseela Devi and after her death he continued to live in the self-same house and the natural parents of the 1st defendant and brothers and sisters also started living along with the 1st defendant in the same house. This witness also deposed about how Suseela Devi was hospitalized and how the relatives and also Lakshminarayana had not been informed of the same and the details of C Schedule i.e., Gold ornaments also had been explained. This witness further deposed that after the demise of Suseela Devi the 1st defendant had withdrawn Rs. 45,000/- from her joint account and Lakshminarayana and other demanded to account for the Gold ornaments and the 1st defendant admitted relating to the Gold ornaments but had not presented the same before them. By the date of the death of Suseela Devi, the brothers of Rama Rao, i.e., Lakshmana Rao and Narasimha Rao also were dead. The specific stand taken by P.W.1 is that in the light of the same, his mother, the 1st plaintiff, alone was the nearest heir entitled to inherit the properties of the deceased Gadireddy Rama Rao since he died intestate. This witness also deposed about several other details and had taken specific stand that to their knowledge Suseela Devi had not executed any Will. Hence the stand taken by P.W.1 is that both the deceased Rama Rao and Suseela Devi died intestate and hence the nearest heir, his mother, the original plaintiff, alone is entitled to all the properties. Ex.A-2 is the office copy of the registered notice. The 1st defendant alone had sent the reply. Ex.A-3 is the reply notice sent by the 1st defendant. Since the 1st defendant refused to deliver plaint Schedule property despite notice, the original plaintiff, mother of P.W.1, filed the suit. This witness also deposed about the sale in favour of the 1st defendant and also relating to the acquisition of item No. 3 of plaint B Schedule by Government and the amount lying in deposit in Sub-Court at Rajahmundry. This witness also deposed about O.P. No. 93/80 and O.P. No. 86/80. The Award copy in Award No. 12/80 was marked as Ex.A-4. Ex.A-5 is the decree made in O.P. No. 86.80 on the file of Subordinate Judge, Rajahmundry. This witness also deposed about the photographs taken when Suseela Devi died and when obsequies were performed. Exs.A-6 to A-11 are the positive photographs. Exs.A-11 to A-17 are the negatives. This witness was cross-examined at length. In the cross-examination of defendants 1 and 10, P.W.1 admitted that it is a fact that Gadireddy Suseela Devi fell sick and died and he was not present and he was also not present when her obsequies were performed. This witness also deposed that there was long drawn litigation for partition of the properties between Gadireddy Rama Rao, Narasimha Rao and Lakshmana Rao but however he denied the suggestion that because of the litigations they were not in amicable terms. This witness also deposed that to his knowledge the 1st defendant Sivaram was in the house of Gadireddy Rama Rao from his 10th year and it is a fact that the 1st defendant continued to live with late Gadireddy Rama Rao and his wife Suseela Devi till her death and this witness also deposed that he does not know late Gadireddy Rama Rao executing a Will and again the witness had corrected himself and deposed that Gadireddy Rama Rao had not executed any Will. P.W.1 further deposed in cross-examination that he gave instructions to prepare the plaint after gathering the information. The information was supplied to him by Gadireddy Lakshminarayana. It is needless to say that Gadireddy Lakshminarayana was examined as P.W.2. This witness admitted about the notices between the 1st plaintiff and 1st defendant and also admitted that the 1st defendant asserted the existence of the registered Will dated 28-11-1975 executed by Rama Rao in favour of Suseela Devi and the 1st defendant and he did not verify the truth of his assertion about the Will and this witness also admitted that the 1st defendant also asserted that Suseela Devi executed another registered Will dated 23-9-1978 and he did not verify the truth of the said version also. This witness was cross-examined further in relation to the details of the partition litigation. He admitted that the 2nd brother of Suseela Devi is a Doctor and his name is Dr. K. Gopala Krishna, examined as D.W.6. No doubt he denied the suggestion that when Suseela Devi fell sick the said Gopala Krishna attended on her and several other suggestions also had been denied. This witness also deposed about certain details relating to Gold ornaments of late Suseela Devi. P.W.1 also deposed that he was informed about the details of the Will as mentioned in the plaint by Gadireddy Lakshminarayana i.e., P.W.2 and he told him that the Wills were read over to him by 1st defendant's people. He also deposed that he was also visiting the house of Rama Rao and deposed about the death Rama Rao and the other details relating to the death of Lakshmana Rao and the death or Narasimha Rao. This witness further deposed in relation to the details of sum of Rs. 45,000/- kept in State Bank branch and the said money belonged to Suseela Devi to his knowledge according to this witness. This witness further deposed that Gadireddy Lakshminarayana attended to the obsequies of Suseela Devi and the 1st defendant had not performed the obsequies. This witness further deposed that it is a fact that Gadireddy Lakshminarayana is an influential person at Rajahmundry. This witness also was cross-examined at length by defendants 5 and 11. The suggestions relating to the execution of the Wills had been specifically denied and this witness also was cross-examined in relation to the items of the properties and the tenants. This witness further deposed about the issuance of public notice claiming rights in the properties of Suseela Devi after the demise of Suseela Devi. This witness also was cross-examined by defendants 2 and 4.
28. P.W.3 deposed that he did not even hear the name of Gadireddy Rama Rao but Ex.B-1 contains his signature and on the reverse of the first page of Ex.B-1 also his signature is found and he can identify the signature. This witness P.W.3 also deposed that when long time back he went to the Registrar's office for buying stamps, the scribe came to him and requested him to sign a document and the stamp vendor also told him that he can sign and at their instance he signed the document and at that time no one else signed the document and he does not know who executed the document and for what purpose. Then the scribe who was present there requested to sign the reverse of the first page of the document and then the peon attended to the Sub-Registrar's office had taken him to the place where such signatures were obtained in the Registration office and took his signature. This witness also deposed that he had not seen any person by name Gadireddy Rama Rao since he had no acquaintance and he had not identified. He signed Ex.B-1 only at the request of the scribe. This witness was cross-examined by defendants 1 and 10 and also defendants 5 and 11 and the suggestions put to this witness were denied.
29. D.W.1, the 1st defendant, deposed in detail about the family affairs. D.W.1 specifically deposed even about the family affairs of Gadireddy Rama Rao and how Gadireddy Rama Rao and Suseela Devi being issueless brought him up as fostered son and Gadireddy Rama Rao filing partition suit against his brothers and sisters and the suit not being disposed of during his lifetime and his fostered mother Suseela Devi being added as a legal representative after the demise of Rama Rao. This witness also deposed about the death of Narasimha Rao and the death of Lakshmana Rao. D.W.1 also deposed that Gadireddy Narasimha Rao has no issues and he adopted P.W.2 as his son. This witness also volunteered that partition suit was compromised between the legal representatives of Rama Rao, Narasimha Rao and Lakshmana Rao and the three brothers died pending partition suit. This witness also deposed that he was brought up even from the childhood by Gadireddy Rarna Rao and his wife Suseela Devi with an intention to adopt him but however adoption had not taken place. This witness further deposed that even after the death of his foster father Rama Rao, P.W.2 Lakshminarayana never visited the house of his foster mother and assisted her. This witness deposed in detail about the execution of Ex.B-1 by Rama Rao and Ex.B-2 by Suseela Devi. This witness also deposed in detail how Suseela Devi, his foster mother, got pain and she was treated by a local Doctor and subsequent thereto she got Dr. Gopala Krishna, the younger brother of Suseela Devi from Vizag for treatment. The evidence of Gopala Krishna, examined as D.W.6, also is available on record. This witness, D.W.1, also deposed in detail about the death of his foster mother and about performing the ceremonies and the conduct of P.W.2 in asking him not to perform the funeral rights and the other problems. This witness also deposed in detail abut the family affairs vis-a-vis the conduct of P.W.2. This witness further deposed that on the next day of the death of Suseela Devi, P.W.2 came and asked all of them to go away from the house and he brought ten people to demand them to vacate the premises. They had shown Exs.B-1 and B-2 to him but he did not accept and they gave a report to police showing Exs.B-1 and B-2. The police examined P.W.2 and others and instructed them to keep quiet since it is a civil dispute. In view of the same, P.W.2 got this suit filed. This witness also was cross-examined at length by defendants 5 and 11. This witness was cross-examined about several details by the Counsel for the plaintiffs. The family details of this witness also had been elicited and the education and other aspects of this witness also had been elicited. The details relating to the pending partition suit at the relevant point of time and the knowledge in relation thereto also had been elicited. This witness deposed that he did not ask Suseela Devi to add him as a party in the partition suit along with her as she got a share in Ex.B-1 Will and Suseela Devi had not taken steps to implead him as a party in the partition suit and she did not inform the Court that her late husband executed Ex.B-1 Will. This witness also was cross-examined in relation to Ex.B-2. This witness deposed that Suseela Devi executed Ex.B-2 subsequent to the compromise decree in the partition suit and at the time of execution of Ex.B-2 Will a copy of the compromise decree was shown to the scribe. This witness also deposed that he gave instructions to prepare the written statement and he did not perform the obsequies of Gadireddy Rama Rao. P.W.2 performed the obsequies. This witness also deposed that he did not perform the obsequies of Suseela Devi also and P.W.2 performed those obsequies and if it is mentioned in written statement that he performed the obsequies of Suseela Devi it is not correct. This witness also deposed that one J. Satyanarayana whose address is found in Ex.X 1 settlement is the son of D.W.2 and he was tenant in Suseela Devi's house. This witness deposed that he does not remember to have issued a telegram in the name of J. Satyanarayana intimating the death of Suseela Devi as in Ex.X-1. This witness also was cross-examined relating to the nature of Gadireddy family and he had admitted that it is a wealthy family. This witness no doubt deposed that he is not personally aware of Ex.B-1 executed by Gadireddy Rama Rao and he denied certain suggestions in relation to Ex.X-1. This witness also deposed that the Government had acquired some land belonging to Gadireddy Rama Rao after his death and this witness corrected himself and deposed that when the acquisition had started Gadireddy Rama Rao was alive. This witness also deposed that Suseela Devi had not received any compensation and he denied the suggestion that Suseela Devi received some of the instalments of compensation after the demise of her husband Rama Rao. D.W.1 deposed that -he remembers that Suseela Devi was putting an application before the Land Acquisition Office claiming compensation due to her husband and he had not attended to this correspondence. He is aware that the Government had acquired the land of Gadireddy Rama Rao and Gadireddy Rama Rao is entitled to receive compensation from the Land Acquisition Officer and he did not apply for compensation after the demise of Gadireddy Rama Rao and during the life time of Suseela Devi claiming that he has interest in the acquired land. But however he is aware by that date he is entitled to a share in the compensation by virtue of Ex.B-1 Will but he cannot explain why he did not seek for compensation of his share in the acquired land during the lifetime of Suseela Devi and he did not even request Suseela Devi to take compensation on his behalf also and till that date he did not try to know on what basis Suseela Devi claimed compensation of the acquired land. This witness also deposed that Suseela Devi had no intention of causing any harm or injustice to him and she was willing to help him only and Suseela Devi had knowledge of the execution of Ex.B-1 Will by her late husband. This witness also was cross-examined in detail in relation to the tenants and certain items of the plaint Schedule. There was lengthy cross-examination attacking the very execution of Exs.B-1 and B-2. This witness was cross-examined at length in relation to the exchange of notices, the details of the properties and several other aspects in relation to the plaint Schedule properties and also in relation to Exs.B-1 and B-2. Several suggestions had been specifically denied. This witness also deposed that it is not true to say that Exs.B-3 to B-5 sale deeds were brought into existence only to create further litigation and hindrance to the plaintiffs to enjoy the property.
30. Apart from the evidence of D.W.1, D.W.3 and D.W.4 also were examined in relation to Ex.B-1. D.W.3 deposed that he was working as a Clerk in Syndicate Bank and he worked in Rajahmundry as Office Assistant under one J.V. Raghava Rao, a document writer of Rajahmundry and he knows one Gadireddy Rama Rao of Rajahmundry and he visited their off ice twice or thrice and he got drafted the Will deed through J.V. Raghava Rao and he is personally aware of the drafting of the Will and he signed the same as an attesting witness that the Will was executed. This witness also deposed that Gadireddy Rama Rao signed in his presence and along with him one Nageswara Rao and other local business man also attested the Will and the executant of the Will had witnessed all the three witnesses attesting the document and all the witnesses saw Gadireddy Rama Rao subscribing his signature to the execution of the Will land the scribe also was present and witnessed the execution and also subscribed his signature in the presence of the executant The scribe Raghava Rao is no more and he is acquainted with the signature and the hand-writing and he can identify and Ex.B-1 is the Will scribed by the said J.V. Raghava Rao and it bears the scribe's signature at the end and he is the first attestor in Ex.B-1. D.W.4 also deposed that the Will was scribed in the office between 8.30 and 9.30 a.m. The executant Gadireddy Rama Rao discussed with the scribe and gave instructions for scribing the Will. At the first instance draft of the Will was prepared and the executant was satisfied with the draft when it was read over to him. Then the fair Will Ex.B-1 was scribed. This witness was cross-examined at length and certain specific questions were put to him relating to the family of Sunkara Sivaram. This witness deposed that Gadireddy Rama Rao executed a Will out of his free volition and this witness was cross-examined on certain of the aspects which are subsequent events and he deposed that he had no knowledge about the same. This witness also was cross-examined in relation to the physical features of the testator Gadireddy Rama Rao and he explained the details. He denied several other suggestions in this regard.
31. D.W.5 is yet another witness who is a retired Clerk of Registration Department and he deposed that from 1974 to 1977 he worked in Sub-Registrar's office, Rajahmundry and he knows late Gadireddy Rama Rao who is a native of Rajahmundry and he was living in Danvaipeta and he was having a classmate residing opposite to Gadireddy Rama Rao's house and he was frequently visiting his classmate's house and he has got acquaintance with Gadireddy Rama Rao and he also deposed that he knows late Gadireddy Rama Rao getting his Will registered. When Gadireddy Rama Rao visited the Registrar's office for registration of the Will he greeted him because of his previous acquaintance. Then he (Gadireddy Rama Rao) requested him to act as an identifying witness for the Will executed by him and accordingly he signed the Will as an identifying witness. Ex.B-1 contains his (D.W.S's) signature as identifying witness. Gadireddy Rama Rao subscribed his signature and thumb impression on Ex.B-1 and also put his thumb impression in his presence in the Sub-Registrar's office. Another person also signed Ex.B-1 as identifying witness and he does not now his name. He is a business man. Gadireddy Rama Rao witnessed this witness and other identifying witness attesting Ex.B-1 as identifying witnesses. Both the identifying witnesses also had witnessed Gadireddy Rama Rao signing his name on Ex.B-1. This witness also was cross-examined at length and suggestions were put to him that Ex.B-1 is a forged document which had been denied. This witness also deposed that he signed some documents as attestor though he cannot give the number. This witness also deposed that he knows D.W.4 but he had no acquaintance with him. This witness deposed that he only knows about the presentation of the document and getting the document registered.
32. P.W.1 and D.W.1 also deposed about Ex.B-2 and they had taken a stand - P.W.1 deposing that Suseela Devi never executed Ex.B-2 and D.W.1 deposing that she (Suseela Devi) in fact had executed Ex.B-2. P.W.4 deposed that he has been working as a Wireless Operator in Police Department at Eluru and during 1975 to 1978 he was studying B.A. in College at Rajahmundry and he was also doing part-time job under one Juthuka Veera Raghavarao for one hour in the morning and one hour in the evening and one P.A.P. Sarma was the partner of Veeraraghavulu and he was a document writer. The signatures found in Ex.B-2 as Rambabu in Telugu at page No. 2 and English on the reverse of page No. 2 are of this witness. This witness deposed that Gadireddy Suseela Devi, the alleged executant of Ex.B-2 and the other attestor by name Jaldu Apparao in Ex.B-2 had not signed in Ex.B-2 in his presence and he is not aware of Gadireddy Suseela Devi or Apparao. He signed Ex.B-2 at the instance of Veeraraghava Rao as he was his guruvu. This witness also deposed that he had no acquaintance with the 2nd plaintiff or the 1st defendant and four months back he received summons from the Court. He deposed that he is giving evidence in relation to Ex.B-2. This witness was cross-examined and the suggestions put to him had been denied. This witness also admitted that he gave affidavit to the 2nd plaintiff about a year back stating that Suseela Devi did not execute Ex.B-2 in his presence. No doubt he denied the suggestion that he had received money from the 2nd plaintiff for giving such affidavit. When examined by the Court this witness deposed that he signed on the reverse of page No. 1 of Ex.B-2 in the presence of Sub-Registrar. During the period four or five years while he was working in the office of Veeraraghavarao he was mostly attending to printing and sale of several forms like T. A. Bill forms, Summons etc., and he also signed at page No. 2 of Ex.B-2 in the office of the Sub-Registrar.
33. D.W.2 is the attestor of Ex.B-2 and D.W.3 is the scribe of Ex.B-2. D.W.2 deposed in detail about the execution of Ex.B-2 though he deposed that he does not remember the exact date and he had attested the Will in her presence in the house and he was also an identifying witness of the testator before the Sub-Registrar. Ex.B-2 contains his signature as the first attestor and as second identifying witness and he identified his signatures. The scribe read over the contents of the Will and after accepting the contents the testator subscribed her signature. Then the attestors subscribed their signatures in her presence and they had witnessed the testator subscribing her signature in execution of the Will. The testator also witnessed the attestors attesting the Will. D.W.2 also deposed that the testator Suseela Devi was in sound health by the date of execution of Ex.B-2 Will. The other attestor is one Rambabu and the scribed is one Sarma. This witness D.W.2 was cross-examined at length and several suggestions were put to this witness and the suggestions were specifically denied. The stand taken that the document is a fabricated one had been denied by this witness. The other details relating to Ex.B-2 also had been spoken to in detail by him both relating to attestation and also as an identifying witness. On a careful scrutiny of the evidence of this witness, the lengthy cross-examination could not in any way shatter his natural testimony. DW-3, the scribe of Ex.B-2 also deposed about the testatrix being in a sound disposing state of mind at the time of execution of Ex.B-2 and he deposed about the testatrix signing in the presence of both attestors and this witness and he deposed about the details of the attestors and this witness scribing the Will. Several suggestions were put to this witness also relating to the validity of Ex.B-2 taking a stand that it is only fabricated, but all these suggestions were denied. The details relating to the execution of the Will and also scribing of the Will had been answered by this witness in a cogent fashion and this witness also deposed in chief-examination with permission that before scribing the Will he ascertained the husband's name and residence and her name and then scribed the Will.
34. Apart from this evidence in relation to Ex.B-1 and Ex.B-2, some other evidence also had been let in by the parties. P.W.2 Gadireddy Lakshminarayana deposed several details relating to the family. Likewise, P.W.5 Nagisetty Suryanarayanamma, the daughter of Gadireddy Lakshmana Rao also deposed about the family affairs. This evidence also may have to be appreciated. P.W.2, Gadireddy Lakshminarayana, deposed about the details of the family. He deposed about the family affairs of the Gadireddy Rama Rao, he being a natural son of one of the brothers of Rama Rao Lakshmana Rao and adopted son of yet another brother Narasimha Rao. This witness deposed that the deceased 1st plaintiff is the sister of his father and other sisters died long back. He also deposed that Gadireddy Suseela Devi, wife of Rama Rao is also known as Shakuntala and his adoptive father and natural father were living in one house and his paternal uncle Rama Rao was living separately in yet another house and he deposed about the death of Rama Rao and further deposed that the 1st defendant is the sister's son of Suseela Devi @ Shakuntala. He also deposed that after the demise of his paternal uncle Rama Rao he was looking after the family affairs including property matters. This witness further deposed about the family affairs of the 1st defendant. The death of Suseela Devi was informed by the tenant and the telegram given to him by the tenant was marked as Ex.X-1. This witness also deposed about certain family properties being acquired by the Government and the Award passed in relation thereto. This witness had taken a specific stand that his paternal uncle Rama Rao never executed any Will in favour of his wife Suseela Devi or in favour of the 1st defendant and this witness also deposed that his paternal uncle Rama Rao used to discuss about the family affairs. This witness also deposed that Suseela Devi also never executed any Will, this witness further deposed that Gadireddy family is a very rich and influential family in Rajahmundry and he also further deposed about the funeral rites of Suseela Devi and the photographs in relation thereto, Ex.A-1 to A-11 and the negatives Exs.A-12 to A-17. This witness further deposed that the 1st defendant and others had not informed him about Suseela Devi being sick and being shifted to Government Hospital, Kakjnada and he had deposed about several details relating to the Gold ornaments and he further deposed that after cremation of the dead body of the Suseela Devi they demanded for Gold ornaments and the 1st defendant had not produced the said Gold ornaments and then he locked the room where iron safe containing the said ornaments had been there and the lock was intact upto 10th day pedda karma and later he learnt that the 1st defendant had broke open the lock. He gave a complaint in this regard and no doubt ultimately he deposed that he is not claiming any interest in the property of late Rama Rao. This witness deposed that late Rama Rao filed a suit for partition against his brothers O.S. No. 291/70 on the file of Subordinate Judge, Rajahmundry. However, he denied the suggestion that his brothers were not in talking terms. He admitted the fact that from the childhood the 1st defendant was brought up by late Rama Rao and his wife Suseela Devi, but denied the suggestion that Rama Rao and Suseela Devi intended to adopt the 1st defendant as their adopted son. While deposing further in cross-examination wherein several details had been elicited, this witness P.W.2 deposed that he does not know whether Suseela Devi's husband Rama Rao executed any Will and he never made any enquiries in this regard and he also did not make any enquiries with regard to late Suseela Devi executing any Will and this witness also deposed about the family, movable properties and also in relation to the lands and family accounts and the income from certain of the lands. P.W.2 no doubt specifically deposed that he had nothing to do with the family affairs of Rama Rao and denied the suggestion that he attempted to grab the properties of late Rama Rao. Several other suggestions had been denied by this witness.
35. P.W.5, the daughter of Lakshmana Rao, also deposed about the details of the family and specifically denied the signatures of Gadireddy Rama Rao and Gadireddy Suseela Devi in Ex.B-1 and Ex.B-2 and she also deposed about the Gold ornaments. It is pertinent to note that though P.W.2 and also P.W.1 admitted that 1st defendant was brought up by Rama Rao and Suseela Devi, this witness P.W.5 deposed that it is not correct to say that the 1st defendant was brought up by Rama Rao and his wife Suseela Devi. From the nature of evidence of this witness it appears that she is interested in denying every aspect though certain admissions had been made by other witnesses. In cross-examination P.W.5 deposed about the suit for partition and denied the suggestion that her father Rama Rao and Narasimha Rao were not on talking terms or on visiting terms. This witness deposed that there were exchange of letters between her, Suseela Devi and Rama Rao but however she is not in possession of the letters now. She had denied the other suggestions. The evidence of P.W.2 and P.W.5 more or les is general in nature, but however they were examined to depose about the family affairs.
36. D.W.6 is the brother of the deceased Suseela Devi who deposed that he was frequently visiting his sister's house even during her husband's time as well as till her death and she got some ailment before her death. D.W.6 deposed that he was working as Deputy Civil Surgeon, Government Hospital, Razole and when her sister Suseela Devi was sick this witness, D.W.1 and D.W.10 had taken her to G.G.H. Guntur for treatment. This witness also deposed that his brother-in-law and his sister had brought up the 1st defendant and 10th defendant. This witness also deposed about the signatures in Ex.B-1 and Ex.B-2 and identified signatures in the said Wilts. This witness was cross-examined in detail on several aspects. However, by virtue of the cross-examination nothing had been elicited so as to discredit the testimony of this witness.
37. D.W.9 is the wife of the 1st defendant and the mother of the 13th defendant. She deposed that her son's name is Sunkara Rama Rao and at the time of this witness being examined, her son was aged about 9 months and her son has got a right to the properties of Gadireddy Rama Rao. This witness also was cross-examined.
38. Apart from these witnesses, D.W.7, the purchaser of item No. 3 of plaint A Schedule from the 1st defendant jointly in his name and in the name of his wife Lakshminarasamma, and D.W.8, the husband of 11th defendant who had purchased item No. 2 of the plaint A Schedule property from the 1st defendant, also had been examined. They also deposed about several details relating to the sales in their favour and incidentally certain of the aspects of the family affairs of the deceased Rama Rao and the 1st defendant. On appreciation of the evidence available on record, the learned Judge recorded findings and ultimately decreed the suit partly as referred to supra.
39. In the light of the clear evidence available on record though a faint attempt was made on the part of the 1st plaintiff and her heirs to dispute the very execution of Ex.B-1 and Ex.B-2 by examining one of the attestors concerned with those transactions, in the light of the overwhelming evidence adduced in relation to the execution of Ex.B-1 and Ex.B-2 by the appellants herein, the 1st defendant and the 13th defendant, there cannot be any doubt whatsoever that the due execution of the Wills both Exs.B-1 and B-2 by the deceased Gadireddy Rama Rao and his wife Gadireddy Suseela Devi, had been well proved.
40. Point Nos. 2 to 5 and 7: Though the execution of Exs.B-1 and B-2 by the deceased Gadireddy Rama Rao and late Gadireddy Suseela Devi had been proved, the validity of the said Wills had been attacked on several grounds. Though there is no serious controversy in relation to Ex.B-2, submissions at length were made while attacking Ex.B-1 as invalid on several grounds. The recitals of Ex.B-1 already had been referred to supra. The principal submission made by the contesting respondents in this Appeal is that inasmuch as Rama Rao created absolute estate in favour of his wife Suseela Devi the latter clauses of the Will would be of no consequence especially in the light of the clear language employed in the Will and hence in view of the fact that Suseela Devi died intestate in relation to the properties of which decree had been made, by virtue of Section 15 (b) of the Hindu Succession Act, 1956 automatically the 1st plaintiff alone would be entitled to these properties. Incidentally, the condition relating to adoption in the Will also had been canvassed.
41. This is no doubt a testamentary disposition and the same excludes natural heirs from inheriting the properties and hence the Courts may have to be careful and cautious in deciding the validity or otherwise of such a Will. It is also pertinent to note that when the testator died testate, the intention of the testator also may have to be given due regard and to be given effect to. While dealing with the construction of a deed and ascertainment of the intention of the parties in Ramkishorelal v. Kamalnarayan, a 5 Judge Bench of the Apex Court held at para-12 as hereunder:
"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the "words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g. where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."
In Navneet Lal @ Rangi v. Gokul and Ors., while
dealing with the interpretation of Wills, the following principles had been laid down:
(i) The fundamental rule is to ascertain the interpretation of the testator from the words used, the surrounding circumstances for the purpose of finding out the intended meaning of the words which have been employed;
(ii) The Court, in doing so is entitled to put itself into the armchair of the: testator and is bound to bear in mind also other matters than merely the words used and the probability that the testator had/would have used the words in a particular sense, in order to arrive at a right construction of the Will and ascertain the meaning of the language used;
(iii) The true interpretation of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole, with all its provisions and ignoring none of them, as redundant or contradictory, giving such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative.
(iv) Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator;
(v) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will, unless the law prevents effect being given to it. If even there appears to be two repugnant provisions conferring successive interests and the first interest created is valid the subsequent interest cannot take effect, the court will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible, to every testamentary intention contained in the Will.
In Kokilambal v. N. Raman, 2005 (4) SCJ 624. it was held by the Apex Court that the Will has to be read as a whole and the intention of the testator to be ascertained from the words used keeping in view the surrounding circumstances, the position of the testator and the family relationship. In Halsbury's Laws of England, 4th Edition, Volume 50, para 589 at page 395, it was stated:
"It is necessary to construe the Will to find out the intention of the testator. With regard to construction of Wills the law is well settled that intention has to be ascertained from the words used keeping in view of the surrounding circumstances, the position of the testator, his family relationship and that the Will must be read as a whole."
In K. Ambunhi v. H.G. Bhandary, while dealing with interpretation of clauses in this regard it was held by the Apex Court at para 3 as hereunder:
"The rules of interpretation of the "Will" are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of "Will", the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails."
In the above decision the Supreme Court also referred to the decisions in Rameshwar v. Balraj, AIR 1938 P.C. 187. and also in Hammod v. Treharne, (1983) 3 ALL E.R. 308.. A four Judge Bench of the Apex Court in Pearey Lal v. Rameshwar Das, held:
"It must be conceded that there is some conflict of idea in the document but in constructing a Will executed in 1897, the Court should try its best to get at the intention of the testator by reading the Will as a whole. We must accept, if possible, such effect rather than that which would render any of the expressions inoperative. Another rule which may also be useful in the context of the present Will is that the words occurring more than once in a Will shall be presumed to be used always in the same sense unless a contrary intention appears from the Will; see Section 86 of the Indian Succession Act. So too, all parts of a Will should be construed in relation to each other; vide Section 84 of the said Act. It is also a well recognized rule of construction that the Court will look at the circumstances, under which the testator makes his Will, such as the state of his property, of his family and the like: see Section 75 of the said Act.
The circumstances under which the Will was executed by the testator may be gathered from the Will itself. The testator had a wife and an adopted son. He had no other near relations to be provided for. The only objects of his attachment and love were his wife and the minor adopted boy. He was anxious to provide for both of them. The object could be achieved in three ways, namely, (i) by conferring a life estate in his property on his wife and giving a vested remainder in the same to his adopted son; (ii) by making a bequest to both of them; and (iii) by making a bequest of an absolute interest to his wife with a gift over to his son operating by way of defeasance. Learned counsel for the appellant relies upon the following passage in the Will. "The said Mst. Kishen Dei would live in this house and said Nathi MaL will get all the proprietary rights like the testator", in support of the contention that in his sentence the testator made a clear distinction between the nature of the estate given to the wife and that given to his son. He contends that the direction that Mst. Kishen Dei should only live in the house indicates that her interest was only a life interest in the house whereas the direction that Nathi Mal should be in the place testator indicates that he had absolute rights which the father had If this sentence is disannexed from the rest of the document, it may lend some colour to the said argument, but in the context of the other recitals in the document, it fits in the scheme of bequest clearly expressed by the testator. The testator described his interest in the property thus:
"I shall remain malik of entire movable and immovable property and am entitled to do whatever I wish to do. When I die then Mst. Kishen Dei, my wife and after the death of the said Mussammat, my adopted son Nathi Mal, will become malik of all my movable and unmovable property without partnership with anybody."
It is not disputed, and it cannot be disputed, that the said description of his right is that of an absolute interest. The expression "malik" has a well-known connotation and it has found judicial revolution in various decisions of High Court rend the Privy Council. It may not be a term of art but is word of definite content that has become part of the vocabulary' of the common men and particularly of document writers. When the testator used the said word he must have intended to convey the accepted meaning of said word. In Sasiman Chowdhurain v. Shiv Narain, 49 Ind. App. 25 at 35 : AIR 1922 PC 63 at p. 68 the Privy Council said that the term "malik" when used in a Will or other document is descriptive of the position which a devisee or done is intended to hold and has been held apt to describe an owner possessed of full proprietary rights including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred. This Court, in Ram Gopal v. Nand Lal, , accepted the
said observations of the Privy Council as a correct statement of law, but added that it should be taken with the caution which the Judicial Committee uttered in the course of the same observation, namely, that
"the meaning of every word in an Indian document must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the grantor from which it receives its rue shade of meaning."
It is not necessary to multiply decisions, as the expression "malik" has been consistently understood by Courts as conveying the idea of ate. Solute ownership. It must therefore, be held that the testator used the word "malik" to describe his absolute interest in the property. Apart from the meaning generally given to this word, the testator himself furnished a dictionary for interpreting the said term in the Will. With the knowledge of the meaning of the word "malik" the testator proceeded to describe the interest conferred on his wife in the same terms, namely, that she should become "malik" without partnership with anybody. If the Will stopped there, there could not have been any controversy as regards the nature of the bequest. But the testator proceeded to state that after the death of his wife, his adopted son would become "malik" without partnership with anybody. The words must bear the same meaning i.e., the testator intended that after the death of his wife, his adopted son should become the absolute owner of the property. These two bequests prima facie appear to be inconsistent with each other, for there are two absolute bequests of the same property in favour of his wife and, after her death, in favour of his son. Two constructions are possible: one is to accept the first and negative the second on the ground that it is repugnant to the first; the other is to make an attempt to reconcile both in a way legally permissible. Both can be reconciled and full meaning given to all the words used by the testator, if it be held that there was an absolute bequest in favour of the wife with a gift over to operate by way of defeasance, that is to say, if the son survived the wife the absolute interest of the wife would be cut down and the son would take an absolute interest in the same. If that was the construction the statement in the Will relied upon by learned counsel for the appellant could also be reconciled with such a bequests. That statement recorded a wish on the part of the testator that his wife should reside in the house, for he wanted his minor son and wife to continue to live in his house. The second part of the statement also recorded a wish on his part that his wife should keep the property intact and hand over the same to his son, who would also be a full owner like himself. Be it as it may, the said statement could not detract from the clear words used earlier. If the argument of learned counsel for the appellant be accepted, this Court would be rewriting the Will for the testator and introduction words which were not there; it would be cutting down the meaning of the words which the testator designedly used to convey a larger interest to his wife. Where apparently conflicting disposition can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. If the construction suggested by learned counsel be adopted, in the event of his son predeceasing the testator, there would he intestacy after the death of wife. If the constructions suggested by the respondent be adopted, in the event that happened it would not bring about intestacy, as the defeasance clause would not come into operation. That was the intention of the testator is also dear from the fact that he mentioned in the Will that no other relation except his wife and son should take his property and also from the fact that though he lived for about a quarter of a century after the execution of the Will, he never thought of changing the Will, though his son had predeceased his wife".
A three Judge Bench of the Apex Court in Ramachandra Shenoy and Anr. v. Mrs. Hilda Brite and Ors., held at para-14 as
"There is also one other consideration which supports the above construction. It was common ground that under Clause 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on A's death must pass to his heirs or under his Will and any attempt to sever the incidents from the absolute interest by prescribing a different destination mustfail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the Will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words 'after her lifetime' occurring in Clause 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct".
42. In the present case, the fact that the 1st defendant was brought into the family by Rama Rao and his wife Suseela Devi is not in serious controversy. The fact that both the 1st and the 10th defendants were brought up in the same family also is not in serious controversy. There is some evidence available on record that the couple intended to take the 1st defendant in adoption but for certain reasons the same could not be finalized. It is also pertinent to note that as per the evidence available on record all was not well in between Rama Rao and his brothers and there was a partition litigation. Though an attempt was made by P.W.1 and P. W.2 to show that P. W.2 alone was assisting in the family affairs to Suseela Devi after the death of Rama Rao the same cannot be believed. It appears that this branch of Rama Rao and Suseela Devi had not been in happy terms for obvious reasons with the other branches and there is some evidence on record that the other branches stayed under one roof and there was a long drawn partition litigation, which subsequently appears to have been compromised. In the background of this factual situation, it can be definitely inferred that Rama Rao might not have intended that after his demise the properties to be taken by the heirs of his side. It is also pertinent to note that the partition litigation also had been specified in Ex.B-1. It is true that there is a clause relating to adoption to be taken. It is also true that there is a clause making the bequest as though it is an absolute interest in favour of the wife and the rest of the properties to be enjoyed by the 1st defendant in a limited way and subsequent thereto to devolve upon the first son who was not in existence by that time and to be born to the 1st defendant. These clauses which had been incorporated in Ex.B-1 have been highlighted in detail by the respective Counsel while either attacking the validity of Ex.B-1 or substantiating the stand that the same cannot be held to be invalid in the light of the clear intention of the deceased Gadireddy Rama Rao as reflected in the latter clauses.
43. The oral evidence available on record already had been discussed at length while answering Point No. 1 and the same need not be repeated again. In Law of Wills by Mantha Rama Rao, 6th Edition, Volume I, at page 642, the learned commentator while dealing with the principles in the decision Tagore's case, referred (1) supra, stated:
"According to pure Hindu law a gift cannot be made in favour of a person who was not in existence at the date of the gift. A person capable of taking under a Will must either in fact or in contemplation of law be in existence at the death of the testator. Although there is no authority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person, yet that doctrine has been engrafted on Hindu law by the decision of the Judicial Committee. This doctrine was laid down for the first time in Tagore's case (1872) I.A. Supp. 47) in which it was held by the Judicial Committee that a Hindu cannot make a gift in favour of a person who is not in existence either in fact or in contemplation of law at the time the gift was to take effect. The principle underlying the maxim is that "the law so favours the public good, that it will in some cases permit a common error to pass right."
The doctrine in Tagore's case has been altered by three Acts, namely, the Hindu Transfers and Bequests Acts, 1914 (1 of 1914), the Hindu Disposition of Property Act of 1916 and Hindu Transfers and Bequests (City of Madras) Act, 1921. The legal position under these Acts is that no bequest shall be invalid by reason only that any person for whose benefit it may have been made was not born at the date of the testator's death. This rule, however, is subject to the limitation and provisions contained in Sections 113, 114, 115 and 116 of the Indian Succession Act, 1925."
In Aniruddha Mitra v. The Administrator General of Bengal and Ors., AIR 1949 P.C. 244, it was held that a Hindu can now make a valid bequest in favour of an unborn person subject to the limitations contained in Sections 113 and 114 and in scrutinizing the validity of the bequest the rules in Sections 113 and 114 have to be applied as at the testator's death. That was a case where the Will directed that son or sons of his sons whether natural or adopted to become entitled to the residue of the testator's property with certain conditions. The facts of the case in the above decision of the Privy Council are that a Hindu governed by the Dayabhaga School of Hindu law died in 1933 leaving him surviving his widow, son Anirudha Mitra and son's wife. At the time of his death the son had no children. On 5th July, 1931 the father executed a Will and in 1934 the son took a boy in adoption who was born 1932. One of the clauses of the Will ran as follows:
"I further Will and direct that the legitimate son or sons of my son Aniruddha Mitra whether natural born or validity adopted shall become entitled to all the rest and residue of my property. If there is only one son of my son such residue shall be made over to such son of my son on his completing the age of twenty-one years and if there are more sons of my son than one then to such sons of my son Anirudha Mitra in equal shares on the youngest of the said sons completing the age of twenty-one years. Until the youngest of such son or sons of my son attains the age of twenty-one years the executor or trustee shall pay the sum of Rupees seven hundred per month to each of such son or sons of my son Aniruddha Mitra for maintenance and education."
In the above stated facts and circumstances it was held by their Lordships of the Privy Council that the residuary estate in clause 9 became vested the moment a son was born to or adopted by the testator's son, and the completion of 21 years by the only or youngest son was not a contingency, but was only a postponement of possession and the while remaining interests of the residue had been bequeathed under the clause and the provisions of Section 113 had no operation on the clause of the Will. It was further held that assuming that Section 114 would apply, the bequest to the son of Aniruddha was saved by force of Section 115 of the Succession Act, 1925.
44. In the case on hand though no specific plea as such had been taken in the plaint, evidently, for the reason that the 1st plaintiff claimed by virtue of intestate succession taking a stand that there were no Wills at all in existence, the fact remains that even at the earliest point of time at the time of exchange of notices Wills had been mentioned and apart from it there is some evidence to show that these Wills were brought to the notice of the opposite parties and hence on the date of institution of the suit it cannot be said that the 1st plaintiff had no knowledge of the possible stand which may be taken by the 1st defendant in this regard. But however, for the reasons best known, specific pleas had not been taken and these questions had been agitated only at the time of making submissions before the trial Court and the said submissions are made in further elaboration before this appellate Court without any factual foundation on the ground that these are pure questions of law arising out of admitted facts and hence such contentions can be raised. The relevant provisions viz., Sections 88, 112, 113, 114 and 115 of the Indian Succession Act, 1925 read as hereunder:
Section 88: The last of two inconsistent clauses prevails: Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Section 112: Bequest to person by particular description, who is not in existence at testator's death: Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void.
Section 113: Bequest to person not in existence at testator's death subject to prior bequest: Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
Section 114: Rule against perpetuity: No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
Section 115: Bequest to a class some of whom may come under rules in Sections 113 and 114: If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of Section 113 or Section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class.
Submissions at length were made in the context of the language of Section 112 and Section 88 of the aforesaid Act in particular. In Arunkumar and Anr. v. Shriniwas and Ors., 2003 (3) Supreme 422 while dealing with Section 124, Illustration (f) of the Act aforesaid and the construction of the Will, a two Judge Bench of the Apex Court held that the essential principles which should guide Courts in interpretation of Wills had been set out in Navneet Lal's case, referred (3) supra, and where there was a stipulation that after the death of the testator her husband will be the heir and owner and appellants, sons of sister of testators, shall be the owner of property after death of husband of testator, and where the Courts below found that disposition in favour of the appellants was superceded by disposition infavour of the deceased husband of testator who inherited property as full owner, the essential rider and limitation indicating that succession or ownership by husband of testator was only life interest, it was held that the material in the document itself necessitated a limited meaning to be given to word "malik" and to construe bequest in favour of husband to be a life interest and the appellants were entitled to be declared owners of property in terms of the Will. Reliance also was placed on Uma Devi Nambiar and Ors. v. T.C. Sidhan (died),
wherein Sections 192 to 195 of the Act aforesaid had been dealt with and it was also held that if a person intends his property to pass to his natural heirs there is no necessity at all of executing a Will and however it is true that a propounder of the Will has to remove all suspicious circumstances. The contesting respondents/plaintiffs placed strong reliance on the decision of the Apex Court in Mauleshwar Mani and Ors. v. Jagdish Prasad and Ors., . wherein the
Apex Court while dealing with a bequest made in favour of the wife and whether it created absolute right or limited right, held that if property is given with a right of alienation the bequest is a conferment of an absolute estate and therefore any subsequent bequest in the same Will in favour of someone else would be invalid and if the Will clearly indicates that only a limited or restricted right is being bequeathed to the wife, then a subsequent bequest in favour of someone else to take effect after the death of the wife would be valid, and where the testator bequeathed his entire property including bhumidari land to his second wife, the property was to be shared between his nine grandsons, offspring of his six daughters first and second wives, it was held on facts that the second wife had acquired an absolute interest and therefore the grandsons through the first wife could not inherit the property on the basis of the Will and the High Court erred in allowing the Second Appeal of respondents/purchasers of portions of the property from such grandsons of the testator. Reliance also was placed on G. Narayana and Ors. v. R.N. Rajagopalan and Ors., . wherein the testator, S who admittedly owned the
suit properties executed a registered Will on 6-12-1921 and subsequently died in 1928. Under that Will, the testator bequeathed the suit properties in favour of his grandson G, the legatee and his heirs to be enjoyed by them from generation to generation without powers of alienation and directed that they should feed Brahmins on particular days. R and N born in 1945 and 1947 were the sons of G. There were alienations and partition of the properties in 1950. R and N filed suit for a declaration that G was entitled only to a life estate in respect of the suit properties and that the various alienations and partition would not enure beyond the lifetime of G. Under Clause (2) of the Will, the testator had merely referred to the creation of rights in the properties in favour of G and by Clause (3) he had clearly set out the nature of the interest which he had conferred on him with reference to the properties. The testator himself was aware of the difference between an absolute interest and other kinds of interest and had deliberately chosen to refrain from mentioning the nature of interest conferred under Clause 2. As the interest was created only by Clause 3 of the Will and not by Clause 2, there was, therefore, no question of the conferment of an absolute interest being curtailed by later restrictions upon that interest. In the said facts and circumstances it was held by the Madras High Court that ft could not be said that Clause 3 of the Will had cut down as absolute interest conferred under Clause 2 and to that extent, it was neither inconsistent or repugnant and should therefore be ignored. A Division Bench of Calcutta High Court in Lalit Mohan Mondal v. Profulla Kumar Mondal, (D.B.). while dealing with Section 84 of the Act aforesaid and the construction of the Will held that where the testator stated in the Will that his wife would get the property absolutely with full right of alienation by gift, sale etc., the testator must be deemed to have intended to confer absolute estate on her and not a mere life estate and Subsequent clauses would be of no effect. A Division Bench of Patna High Court in Nakshetramali Dei v. Brajasunder Das, AIR 1933 Patna 647 (D.B.). held that the bequest in favour of a person not living at testator's death is void by virtue of Section 112 of the Act, but however a Will should be construed as literally as possible and every attempt should be made to give effect to the intention of the testator. A Division Bench of Madras High Court in Thayalai. Achi v. Kannammal AIR 1935 Madras 704 ( D.B.). held that in construing a Will the provisions of Section 88 of the Succession Act that where two clauses in a Will collide the latter clause prevails, should be applied and thus if there is repugnancy between two clauses in a Will it is the earlier and not the later gift that would have to be cut down. In Vuyyuru Subbareddi and Ors. v. Vuyyuru Basivireddi and Anr., 1966 (1) AN. W.R. 272. while dealing with the construction of the Will it was held that all clauses of the Will must be given effect to and the aspect when Section 88 of the Act aforesaid to be resorted to also had been dealt with by the learned Judge. In Jabamalai Mariammal and Anr. v. A. Madalamuthu Thevar and Anr., 1966 (1) MLJ 7. a learned Judge of Madras High Court while dealing with interpretation of a Will held :
"In interpreting a Will it is the duty of the Court the find out the intention of the testator. The true intention has to be gathered from the language used by the testator, as he has conveyed the expression of his wishes in the words employed by him in the instrument. All the parts of the Will are to be construed with reference to each other and so as, if possible, to form one consistent whole. On a question of the true interpretation of a Will decisions on the construction of the other Wills may be useful only so far as they lay down the principles of law which have to be observed in the construction of Wills.
In cases of Wills providing for an absolute gift of property with all powers of alienation in favour of one legatee followed by a gift over of the property after the death of the first legatee, difficulty has been frequently experienced by Courts in determining whether the latter clause should be ignored as void, being an attempt to lay down a rule of devolution when the property has already been taken absolutely by some one else, or whether the latter clause should be construed as one by way of defeasance so as to cut down the absolute estate conferred under the former clause to a life estate. A distinction between a defeasance clause and the repugnant one is very often a nice one and in several cases Courts have adopted an intermediate construction of construing a prior absolute gift as an estate for life with a power of appointment by deed or Will and the subsequent limitation or bequest taking effect in case the power of appointment had not been exercised. Even though for practical purposes, there is no distinction between an absolute estate and a life estate coupled with a power of appointment by Will of deed, it is settled law that the ideas are two distinct conceptions and that it is quite competent to a testator to confer a life estate with a power of appointment by a deed or Will following it up by an independent or subsequent bequest in case the first legatee dies without exercising the power of appointment. Thus, if the intention expressed or necessarily implied on reading all the clauses of the Will is to modify the absolute estate, the absolute estate is to be given effect to as a life estate with a power of appointment. This construction of the clause would best effectuate the intentions of the testator in either case, when there is an alienation in pursuance of the exercise of the power of appointment or when the first legatee dies without alienating. In a case where the prior legatee alienates the property before his death, such an alienation has to be and is upheld in view of the fact that absolute estate with powers of alienation has been conferred under the Will and in such a situation, there is nothing on which the latter clause could operate. On the other hand if the first legatee dies without exercising the powers of alienation, the intention of the testator again is effectuated by the legatees mentioned in the latter clause taking the property as provided therein.
Where there is an absolute gift of property followed by a gift over of the property after the death of the donee, to construe the latter clause as cutting down the prior absolute estate into a simple life estate with no powers of alienation would be "doing violence to the express language of the Will and attaching decisive and outweighing importance to the latter clause, ignoring altogether the express power of alienation conferred in the earlier clause. Under the guise of adopting a rule of harmonious construction, there is no justification for adopting a construction which in effect destroys the operative force of the clear words contained in the first clause.
Where a testatrix provided in her Will that after her death her husband shall become the absolute owner of her property enjoy the same with full powers of alienation and further provided that after the lifetime of her husband her son shall become the absolute owner of the property and the husband alienated the property during his life time it was held that the alienation cannot be questioned by the son.
An unqualified absolute estate was conferred on the husband without any restrictions whatsoever. The intention of the testatrix was to maintain an absolute estate in favour of her husband. The subsequent bequest in favour of the son would take effect only if the husband died without alienating the property. But if he had alienated, the validity of the alienation must be upheld in view of the express terms of the Will as otherwise the intention of the testatrix would be frustrated."
A Division Bench of this Court in K. Suryanarayanamma v. A. Sanmyasamma alias Dharmawathi and Ors., 1983 (1) APLJ 188 (HC) (D.B.) while dealing with two dispositions and repugnancy had followed the principles which had been summarized by the Apex Court in Navneet Lal's case referred (3) supra. In Hamsaveni Ammal and Ors. v. S. Rajagopal Chettiar, 1977 (1) MLJ 207. a learned Judge of the Madras High Court observed :
"To the extent legally possible, effect should be given to every disposition contained in a Will unless the law prevents effect being given to it. If there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect. But a Court of construction will proceed to the furthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will. Normally even if words are used as possible of conferring an absolute estate in favour of one, that absolute interest could be construed as having been cut down to a life interest where successive absolute estates are given and the dominant intention of the testator was to benefit each donee. In such a case, the successive absolute interests will all have to be construed as successive life estates. Another way of cutting down an absolute estate is to fetter or use words appropriate to disclose an intention to restrain alienation coupled with a gift over. The apparent absolute conferment of the estate would also become limited, if it was made subject to the provisions and directions contained in the Will itself and there are limitations on the absolute grant in the later clause. Inasmuch as in the instant case, though the testator had used the expression "xxxxxx" (words in vernacular omitted) which are words of absolute grant, there was a provision in the same clause to the effect that after her death her male children had to take the properties, the intention was clear that the prior legatee should have only a life interest".
A Division bench of Delhi High Court in Lt. Col. Kanwaljet Singh Chowdhary v. Chowdhary Harnam Singh and Anr., 1966 AIHC 2331 (Delhi) (d.b.)while dealing with the construction of the Will held that clauses in the Will be read as a whole and where an earlier clause in the Will of the testatrix provided for bequest of the properties in favour of children and the latter clause restricted its operation it was held that the latter clause has precedence over the earlier clauses. A learned Judge of the Madras High Court in Damodara Moothan v. Ammu Amma and Ors., AIR 1944 Madras 22. while dealing with Sections 97 and 113 of the Succession Act aforesaid observed :
"Section 97 does not apply directly to Wills by Hindus; but temporary injunction lays down a general principle of interpretation of Wills which cold equally be applied to a Will by a Hindu, though if the clear intention of the testator appeared otherwise the section should not be applied".
In the said case, after the testator in his Will had expressed his regret that he had no male issue and had only a younger daughter K of ten years of age, he said "the aforesaid K born to me by my wife Paru, becomes entitled to all my properties and the proceeds thereof" and he then went on to say that the would manage the property for the remainder of his life that he and his wife during their life time should enjoy the property, and that after they were both dead their property should be enjoyed by the daughter K and the issues that might be born to her. In the said facts and circumstances it was held:
(1) after the life interest of the widow K obtained the property absolutely and that the Will could not be interpreted as making a joint gift to K and such of her children as might be alive when she came to enjoy the property.
(2) the gift in favour of the children that might be born to K was not void under Section 113, Succession Act and Section 13 of Transfer of Property Act as the illustrations given in the text beneath those sections did not indicate that when there were two or more prior life interests the bequest or transfer would be void even if it comprised the whole of the interest of the testator.
(3) as K was still alive, her daughter, the plaintiff would have no cause of action to sue for share of the property. She would be entitled to ask for a declaration that the alienations by her mother were not binding on her; but in the circumstances of the case, that declaration should not be granted.
Strong reliance was placed on Minor Anantha Sayana Naidu by next friend Renu Ammal v. Kondappa Naidu alias Devarajulu Naidu and Ors., 1940 MLJ 212 wherein the testator after making two Wills wrote a third Will as 212 hereunder:
"I am at present physically weak on account of asthma; as I apprehend that I may not live long, as you are my wife, and as in the Wills previously executed (by me), no mention is made about your maintenance, all the properties belong to me, that is, all the movable and immovable properties in these villages, namely, Vallam, Nemili, Vadakkumangalam and Mazhayur, shall after my lifetime be enjoyed by you with powers of alienation by gift, mortgage, sale etc., and after you, the properties then remaining shall, according to the Wills executed by me on 25th July, 1917 and 21st November, 1917, be held and enjoyed by our daughter Kuppammal, with powers of alienation by gift, mortgage, sale etc".
On a construction of the said Will it was held:
"Prima facie where powers of absolute disposition are conferred on the donee, it should be taken as an indication that the testator intended to confer an absolute estate on the donee. The Will conferred powers of alienation of the widest amplitude such as gift, mortgage, sale etc. the language was wide enough to confer a power of disposition both testamentary and non-testamentary. Therefore, giving the plain grammatical meaning to the above language it would follow that the nature of the interest taken by the widow of the testator was. an absolute estate".
In Lakshmi Ammal and Anr. v. Allauddin Sahib, . where the Will had inconsistent provisions and the testator gave property to wife absolutely and interest of daughters expressed in subsequent clauses, the nature of the wife's estate was held to be life estate and not absolute estate which had been created under the Will. In Thayalai Achi and Ors. v. Kannammal alias Ponnammal Achi and Ors., 1968 MLJ 707. the testator provided by his Will as follows:
"After my death my wife P, enjoying with all powers of alienation by gift, exchange or sale the movable and immovable properties belonging to me..., shall herself discharge the debts payable by me.... I have hereby given full authority to the said P for effecting sales, etc., after my death in respect of my immovable and movable properties either for the purpose of discharging the debts or for any other reason.... If after the alienations that may be made by my wife P for the purpose of discharging the aforementioned expenses, there be any property movable or immovable left at the time of her death, the same shall be taken after her death by N."
The learned Judge while construing the said Will held that the wife took an absolute estate under the Will, but if she did not dispose of the property during her life time or by Will the property passed to N and that the bequests were not void because of repugnancy or uncertainty. Strong reliance was placed on Mandala Mandhava Rao v. Mandala Yadagiri and Ors., . wherein the learned Judge of this Court held that where there are two irreconcilable clauses in the Will, the latter clause should prevail and where under the Will absolute rights are given to the wife of the testator but in the subsequent clause it was mentioned that after the death of the wife, his son would inherit the property, it was held that wife holds only a life estate under the Will. Strong reliance was placed on Kundan Lal v. Murarilal and Anr., ILR (31) All. 339 and Lalta Prasad v. Salig Ram and Anr., ILR (31) All. 5.
45. On a careful reading of all the clauses in Ex.B-1 and also several decisions that had been cited, the first question in controversy is, in the facts and circumstances of the case whether Suseela Devi was given absolute interest or only life interest by her husband Gadireddy Rama Rao. It is no doubt true that on a prima facie reading of the Will Ex.B-1 it would appear as though the testator conferred absolute interest on the wife and the rest of the properties to be enjoyed after her death in a limited way by the 1st defendant and to be taken absolutely subsequent thereto by the first son of the 1st defendant. From the words "rest of the properties" submissions were made that the intention of the testator was specific and clear in making an absolute and unrestricted bequest in favour of the wife and not a limited life interest and hence the subsequent clause would be inoperative and in view of the same, automatically the natural heirs alone would be entitled to the other properties left by late Gadireddy Rama Rao. In other others, late Gadireddy Rama Rao can be said to have died intestate only in relation to the said properties and not testate. In substance this is the stand taken by the plaintiffs. In the light of the principles laid down in Navaneet Lal's case referred (3) supra, several of the factors may have to be taken into consideration while interpreting the Will and when several clauses like the one in question have to be interpreted, the Court may have to sit in the position of the deceased testator to appreciate what actually the testator intended and while doing so the over all facts and circumstances, the family circumstances, the conduct of the parties and all other relevant factors also may have to be taken into consideration in this regard.
46. The controversy is between the kith and kin of late Gadireddy Suseela Devi, the wife of late Gadireddy Rama Rao and the kith and kin of the deceased Gadireddy Rama Rao. Obviously since the brothers were no more, P.W.2 thought of this litigation through the 1st plaintiff and P.W.1, the son and also the Power of Attorney holder of the 1st plaintiff was thought of for this purpose and thus the litigation commenced between these two groups. As already referred to supra, taking in adoption also had been referred to in Ex.B-1, which no doubt was not finalized. The fact that the 1st defendant was brought into the family even at an early age also is not in serious controversy. There are certain admissions even by P.W.1 and P.W.2 in this regard. The stand taken by P.W.1 and P.W.2 that P.W.2 had been assisting Suseela Devi after the death of Gadireddy Rama Rao also cannot be believed in the light of the family circumstances in view of the long drawn litigation between the other brothers and Rama Rao. Apart from this aspect of the matter, the other stand taken that the 1s1 defendant had not shown any interest in the affairs of Suseela Devi and it was P.W.2 who was taking care of the same also cannot be believed especially in the light of the clear evidence of D. W.6, the natural brother of the deceased Suseela Devi. Apart from all these aspects, Ex.B-2 executed by Suseela Devi also would amply substantiate the view that both the husband and wife were not interested in the relatives of husband's side. The picture is clear as far as this aspect is concerned though an attempt was made to give a different picture altogether by P. W. 1, P.W.2 and P. W.5 in this regard. Yet another important aspect is that the stand of the plaintiffs is one of total. denial of Exs.B-1 and B-2 and not that Ex.B-1 is invalid for certain reasons. Now in the alternative, the 1st plaintiff and the other relatives who have been backing the 1st plaintiff and the legal representatives are putting forth the pleas relating to the invalidity on the ground that the bequest in favour of an unborn son i.e., 13th defendant, is invalid and also on the ground that an absolute estate had been given in favour of Suseela Devi and hence the latter clause would be inoperative and ineffective. The cardinal rule of construction of a Will is that to the extent legally possible every effort should be made to construe the whole Will in such a manner that every part is made effectual and it is no doubt true that when two clauses are inconsistent how the same to be interpreted had been specified in Section 88 of the Act aforesaid. In Raghbir Singh v. Budh Singh, (D.B.) the facts of the case are as hereunder:
"A was an old man having his wife B, four sons C, D, E and F as well as two married daughters. A was not a lawyer. In his Will A said that his wife B and his three sons C, D and E were obedient and served him. But F was disobedient and was using filthy language against A and B. A was not satisfied with F. A's two daughters were leading a prosperous life and A had already given a lot to them. The testator (A) in the first half of the Will gave an apparently absolute title to both movable and immovable property to his wife (B). Nonetheless in the second part of the Will, the testator gave an absolute property to his three sons (C, D and E) with effect from the death of his wife (B). He did not give anything either to F or to his daughters."
In suit for partition filed by F after A's death, the question was the construction of the Will and a Division Bench of the Delhi High Court while construing the said Will after referring to the decisions in Rameshwar Bakhsh Singh v. Balraj Kaur, AIR 1935 P.C. 187. Saraju Bala Debi v. Jyotirmoyee Deb, AIR 1931 P.C. 179. and the decision in Navneet Lal's case referred (3) supra, held :
"...The Will conferred an absolute estate on the widow only in respect of the movables. It conferred a life estate on the widow in respect of the immovable property. It also conferred an absolute right on C, D and E to the immovable property after the death of the widow. Under the circumstances, the Court could cut down an absolute estate to a life interest to give effect to the whole of the Will and to respect the real intention of the testator".
Whether the language in the prior clause is clear or ambiguous also may have to be interpreted in the context of the subsequent clauses and the other circumstances and in this view of the matter the contextual interpretation of the clauses would be essential for the purpose of ascertaining the intention of the testator. Several circumstances which had led the testator Rama Rao to execute Ex.B-1 had been already narrated supra and short of taking in adoption the clear and real intention of the testator on a reading of all the clauses put together would be that the first son of the 1st defendant to take over the properties. Vagueness, if any in the clauses relating to conferment of absolute estate or the life estate in favour of the wife Suseela Devi may have to be given contextual interpretation. It is not in controversy that the limited interest holder, the 1st defendant subsequent to the death of Suseela Devi, was in existence as on the day when the 13th defendant was born. So the birth of the first son as specified in Ex.B-1 had taken place even during the life time of the other limited holder by virtue of operation of the next clause to the absolute interest or the life interest in favour of the wife prior to the last clause wherein rights were given to the minor children. In the background of the principles laid down in Navneet Lal's case referred (3 supra), this Court just sitting in the chair of the deceased testator, appreciating the over all facts and circumstances from the beginning of the family, is of the considered opinion that the intention of the testator is that the first son of the 1st defendant after the death of the 1st defendant to take over the properties as persona designata. This is the only possible interpretation that can be given despite the vagueness in prior clauses relating to rest of the properties or relating to the alleged absolute interest said to have been created in favour of Suseela Devi. It is needless to say that Ex.B-2 also in a way would amply support this view which is being taken by this Court. Apart from this aspect of the matter, it is needless to say that all the clauses put together in the Will may have to be appreciated to cull out the real intention of the testator.
47. Yet another question which had been argued in elaboration is that though adoption was made a condition precedent even in Ex.B-1 the same had not taken place and hence the same is inoperative. As can be seen from the facts and circumstances of the case, it was the wish of the testator late Gadireddy Rama Rao even during his life time and it continued to be his wish by specifying the same even in Ex.B-1. Non-compliance of the said condition would not vitiate the bequest in any way. In Ranganathan v. Periakaruppan, . while
dealing with the construction of a Will and gift to a persona designata the Apex Court held:
"The question as to whether a disposition is to the person intended in a Will as a persona designata or by reason of his filling a particular legal status which turns out to be invalid is one of some difficulty. The question that arises in individual cases must ultimately depend on its own fact sand the terms of the particular document containing the disposition. The question in all such cases is whether the gift of the property by thetestator to a person who is referred to as having been adopted is one which is dependent on whether all the requisites of a valid adoption have been complied with or whether it is to a designated person not withstanding that it was desired and expected that the requisites for a valid adoption were complied with. The distinction between what is description only and what is the reason or motive of a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances.
Taking an over all picture of the various provisions in the Will it was reasonably clear that one Ranganatha notwithstanding his description as adopted son in the Will in several places was intended by the testator to take the property as persona designata and that the Will was, therefore, effective to convey title to him to residue of properties left by the testator after his death and the disposition in the Will was not dependent on Ranganatha's being a duly and validly adopted son."
A Division Bench of this Court in Kutumbayya v. Siva Panchaksharamma, 1959 ALT 803 (D.B.) held :
"The question whether a gift or a bequest to a particular person described as adopted son, is valid or not, when his adoption is intended to take place but which for some reason or other does not in fact take place or is held to be invalid, is not altogether free from difficulty. While it is no doubt true that language of one Will may not afford much assistance in the construction of another, it is well settled that the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
Taking an over-all picture of the various provisions in the Will, it is clear that notwithstanding the fact that the testator wanted that his wife should adopt the plaintiff, it was intended by him that he should take his properties as persona designata and Ex.B-1 (the Will) is, therefore, effective to convey him title to the properties."
No doubt an attempt was made to distinguish these decisions by the learned Counsel representing the contesting respondents. On a careful reading of the last clauses the intention of the testator late Gadireddy Rama Rao under Ex.B-1 is clear that the first son of his foster son, the 1st defendant, despite the fact that there was no adoption, should take the properties after the limited enjoyment by the 1st defendant absolutely and this bequest made definitely is in persona designata. As already stated, no other possible interpretation can be given in the peculiar facts and circumstances. It is really unfortunate that the heirs of the husband of late Suseela Devi being" aggrieved of the deprivation of the properties to their branches and conferring the benefits on the kith and kin of Suseela Devi had triggered this litigation by setting the Law into motion. This is the only acceptable and possible conclusion |, which can be arrived at on a careful scrutiny of the whole factual matrix available before this Court. The settled principles which had been referred to need not be repeated again in this regard.
48. Point No. 6: In view of the fact that this Court had arrived at the conclusion that despite the attack relating to the validity of Ex.B-1, in the light of certain clauses referred to supra, inasmuch as the same was held to be valid, this question need not detain this Court any further. No doubt certain submissions were made in relation to Section 15(2) of the Hindu Succession Act 1956 and reliance was placed on Krushna Chandra Nayak v. Nisamanl Bewa and State of Punjab v. Balwant Singh, AIR 1991 SC 2301. However, in the light of the findings recorded to supra this question need not detain this Court any further.
49. Point Nos. 8 and 9: In view of the findings recorded relating to the validity of Ex.B-1 the daughter-in-law of the original plaintiff would not come into the picture. Even otherwise the application to implead her as a party on the strength of a Will had been filed after a long lapse of time. In the facts and circumstances this application A.S.M.P. No. 15290/2004 need not be allowed and accordingly the said application is hereby dismissed.
50. Point No. 10: In the light of the findings recorded in detail relating to the validity of Ex.B-1 it is needless to say that the suit decreed even in part cannot be sustained and accordingly the findings recorded in relation thereto and the Judgment and decree made by the trial Court are hereby set aside and the Appeal is allowed, with costs, throughout.