A. Gopal Reddy, J.
1. This is a defendant's appeal against the judgment and decree of the Senior Civil Judge, Machilipatnam in O.S. No. 100 of 1989 dated 17-3-1998 decreeing the suit of the plaintiffs for evicting the defendants from the plaint A-schedule lands and for ascertainment of future profits from the date of filing of the suit till the date of delivery of possession on an application filed by the plaintiffs.
2. The facts, which are not in dispute and necessary for disposal of the appeal, are as under :
3. Plaint A-schedule land consists of two items viz., Items 1 and 2. Item No. 1 comprises of Ac.5.57cts., in R.S. No. 250; Item No. 2 comprises of Ac.7.22 cts., in R.S. No. 244 of Atapaka Village which is in possession of defendants 1 and 2 respectively. Originally the land belongs to Kasinathuni Tripuramba who purchased under two registered sale deeds dated 30-9-1901 and 4-7-1902 under Exs.Al and A2 respectively and gifted the said properties to her only daughter-Bramaramba under a gift deed dated 13-3-1919 who again settled the properties on her mother Tripuramba under settlement deed dated 22-11-1936 creating absolute rights in item 2 and reserving vested right on item 1 of plaint-A Schedule. Plaintiffs allege that Bramaramba executed a Will-Ex.A4 dated 9-2-1968 bequeathing the property in favour of Annapurna and Purna Parvatheesam- plaintiffs' vendors and also some other properties to others, as she is the absolute owner of the said properties on her mother's death. On the death of Bramaramba, properties devolved upon the legatees who got released golden ornaments and other properties as per Will. Plaint-A schedule properties were purchased by the plaintiffs under four sale deeds-Exs.A7 and A8 on 22-4-1975 and A9 and A10 on 30-12-1974 and enjoyed the schedule properties of their own right. Plaint A-Schedule property is liable to submerge whenever there is floods in Kolleru Lake and remained water lagging and unfit for cultivation. In the year 1973 lands become fit for cultivation, as drain was dug. The 1st plaintiff who was an agriculturist of the neighbouring village purchased the said lands and cultivating the same from August, 1973 by raising paddy crop which is evident from the fertilizers card issued by the R.D.O. for the supply of chemical fertilizers which were scarcity at the relevant time. From the date of purchase the plaintiffs exercised absolute rights over the suit schedule lands and cultivating the same till 1980.
4. The 2nd plaintiffs elder sister's husband by name Vallabhaneni Nageswara Rao-defendants' vendor's vendor residing at Gudivada knowing fully about the above transaction with ill motive obtained a sham document behind back of the plaintiffs styled as sale deed dated 27-2-1975-Ex.Bl from one S.R.R. V.K. Ananda Vara Prasad who claims that after the death of Bramaramba the property was devolved on Sivalanka Subbamma-the paternal grandmother of Vara Prasad, who is sister of Bramaramba's husband, she being the heir. The sale deed-Ex.Bl is sham and non est and never conveys any title or interest on Nageswara Rao who colluded with Village Karanam and managed to get his name in the revenue records in the place of Bramaramba. Later Nageswara Rao sold the said land to several persons who in turn sold to the defendants. For some time plaintiffs are away from the village and residing in Bombay. On their return from Bombay in December, 1987 and visited the plaint schedule lands to know the prospects of developments, some people have encroached the schedule land by making fish-ponds illegally. Therefore, they sent a representation to the Collector for mutation of their names in the revenue records and obtained Encumbrance Certificate. Hence the above suit is filed as an indigent person for eviction of the defendants and for delivery of possession of plaint A schedule lands and for past mesne profits at Rs. 32,000/- and for future profits to be ascertained.
5. Defendants 1 to 3 filed separate written statements with identical pleas resisting the claim of the plaintiffs and denying acquisition of title by the plaintiffs from the alleged vendors under the sale deeds. It is their specific case that Bramaramba never executed any Will bequeathing the properties in favour of Annapurna and Puma Parvetheesam, she died intestate and the property was devolved on her husband's sister Sivalanka Subbamma who enjoyed the property during her lifetime and bequeathed the same under a Will dated 25-8-1971 in favour of her grandson Ananda Vara Prasad and later died on 30-12-1972, Ananda Vara Prasad who became absolute owner of the suit property sold two acres of land to one Vallabhaneni Nageswara Rao under Ex.Bl sale deed, who in turn sold one acre of land in R.S.No.244, item 2 of the plaint schedule, to 3rd defendant the remaining property to various other persons under various sale deeds from whom the other defendants purchased the said property and are in possession and enjoyment of the same and schedule property was never in possession of the plaintiffs at any time much less from August , 1979; and Vallabhaneni Nageswara Rao was in possession of the suit property from 1-12-1971 under possessory contract of sale which ultimately fructified into a regular sale deed under Ex.Bl and the said land is not fit for wet cultivation since it is surrounded by fish tanks. Plaintiffs cannot question the title or possession of the defendants and plaintiffs' action is barred by limitation and not entitled to any reliefs as claimed and prayed for dismissal of the suit. Pending suit 2nd defendant died whose legal representatives were added as defendants 4 to 6.
6. On the above pleadings lower Court settled the following issues for trial :
1. Whether the plaintiffs are the owners of the plaint schedule properties ?
2. Whether the plaintiffs are entitled to past profits of Rs. 32,000/- as claimed in the plaint ?
3. Whether the plaintiffs are entitled to nature profits if so at what rate ?
4. Whether the Will dated 25-8-1971 is true, valid and binding ?
5. Whether the Will dated 9-2-1968 is true, valid and binding ?
6. Whether the defendants are bona fide purchasers and in possession of the properties ?
7. Whether the suit is barred by limitation ?
8. To what relief ?
7. To prove the claim of the plaintiffs, 1st plaintiff himself was examined as P.W.I; the vendor of plaintiffs was examined as P.W.2; attestor of the Will was examined as P.W.3 and the adjacent cultivators are examined as P.Ws.4 and 5 to prove the plaintiffs' cultivation and marked Exs.Al to A33. On behalf of defendants 3rd defendant was examined as D.W.I, 1st defendant was examined as D.W.2, defendant No. 6, who is the legal representative of 2nd defendant, was examined as D.W.3; the Mandal Revenue Officer was examined as D.W.4 through him Exs.Xl to X36 were marked.
8. The trial Court on appreciation of oral and documentary evidence answered issues 1, 4 and 5 in favour of the plaintiffs and on issue No. 7 the trial Court held that in the absence of better evidence placed by the defendants plaintiffs are deemed to be in possession of the property and defendants failed to establish that the suit is barred by limitation and accordingly answered the issue in favour of the plaintiffs. It was held on issue No. 6 that defendants are not bona fide purchasers whereas on issue Nos. 2 and 3 claim of the plaintiffs for past profits was rejected but awarded future profits to be determined on a separate application. Accordingly decreed the suit of the plaintiffs.
9. Learned Counsel for the appellants, Sri C. Ramachandra Raju urged the following grounds :
1. The vendors of the plaintiffs are not the true owners of the plaint schedule lands; therefore, they cannot convey the suit property to the plaintiffs.
2. Sale deeds in favour of the plaintiffs were never acted upon and pressed into first time in the suit.
3. Plaintiffs were never in possession and enjoyment of the plaint schedule property; whereas the defendants' predecessors-in-title is the true owner having purchased the land from Vara Prasad- grandson of Shivalanka Subbamma to whom the suit schedule property was devolved on the death of Bramammba and she was in continuous possession.
4. Unless the plaintiffs establish that they were in possession of the property for about 12 years prior to the date of filing of the suit is not entitled to recovery of possession in the suit schedule property. Defendants who are bona fide purchasers for value from the true owner whose name was mutated in the revenue records all through from 1975 onwards, until contra is proved, record of rights is conclusive proof to prove the possession of the defendants' vendor's vendor and trial Court committed an apparent illegality in decreeing the suit of the plaintiffs.
5. He lastly submitted that plaintiffs are not indigent persons as claimed by them, therefore, permitting them to sue as indigent person and passing a decree in their favour subject to payment of Court fees cannot be sustained.
He placed reliance on the following judgments:
1. Adinarayanaswamy v. Papamma AIR 1963 AP 121.
4. V. Muthaiah Filial v. Vedambai .
5. State of W.B. v. Dalhousie Institute Socy. .
6. Ram Murti v. Puran Singh .
7. Vaithilinga v. Kuppusami .
10. Per contra, Sri M.R.K. Chowdary, learned Senior Counsel appearing for the respondents/plaintiffs would contend that plaintiffs who purchased the property from the legatees of the Will-Ex.A4 executed by Bramaramba are in possession of the property till 1980, which is evident from Ex.A16. When the defendants failed to prove that Shivalanka Subbamma inherited the property and her bequeathing the property to defendant's vendor's vendor, the lower Court answered all the issues in favour of the plaintiffs with cogent reasons, which is not perverse. In the absence of any plea taken by the defendants that their possession is adverse and failed to discharge the burden under Article 65 of the Limitation Act and about dispossession of the plaintiffs, lower Court is justified in decreeing the suit, which do not call for any interference.
11. Admittedly, suit itself is filed for eviction of the defendants from the suit schedule land and delivery of the plaint A-Schedule land and past and future profits, no declaration is sought by the plaintiffs of their title over the suit schedule property.
12. It is also not in dispute Article 65 of the Limitation Act provides twelve years period for possession of immovable property or any interest therein based on title. The time begins to run when the possession of the defendant becomes adverse to the plaintiff provided plaintiff establishes his rifle.
13. In view of pleadings and submissions made, the points that emerge for consideration in the appeal are :
1. Whether the plaintiffs are able to establish that their vendors succeeded the properties under Ex.A4-Will, in order to establish their title for recovery of possession under suit schedule property based on such title.
2. Whether the defendants purchased the suit schedule property and are in possession of the same more than 12 years, which disentitle the plaintiffs to claim the above relief.
Point No. 1 :-In order to prove plaintiffs' title the 1st plaintiff was examined as P.W.I, who testified that they purchased the property under Exs.A? to A10 from P.W.2, legatee under the Will-Ex.A4 executed by Bramaramba in favour of himself and his sister Annapurna. P.W.I has no knowledge about execution of the Will deed, since he was not present at the time of its execution nor any way he is connected with the Will except his purchase of the property from the legatees of the Will.
14. Ex.A4-Will deed executed by late Bramaramba is not legible but a close reading of the same discloses that testatrix executed a registered Will dated 11-8-1966 which was registered with the Sub-Registrar in 3rd book 37 volume pages 40 to 42 and the same has been cancelled on execution of the present Will and the same will be her last Will under which he got 7 acres of land in Atapaka Village whereas his sister, Annapurna got 5 acres of land and B schedule property-house plot situated in Gudivada was given to her husbands' nephew, viz., Subrahmanyam.
15. P.W.2 one of the legatees under the Will claims to have inherited the property under the Will and sold half of the land to P.W.I-1st plaintiff and remaining half to 2nd plaintiff under the registered sale deeds-Exs.AS and A10; whereas the other legatee-Annapurnamma, who is the sister of 1st plaintiff, got 5 acres of land under Item 1 of plaint A-Schedule property. She sold the same to the plaintiffs 1 and 2 under Exs.A9 and 7. He testified that he was present while Ex.A4 was executed in the house of plaintiff No. 2 in Gudivada, West Godavari District. The Karanam of Anamanapudi Village by name Venkata Purna Kutumba Rao who was residing in Gudivada, one Kamala Somasekhar, and doctor who treated Bramaramba and attested the unregistered Will-Ex.A4, Except Somasekhar the other attestors are no more. After the death of Bramaramba basing on Ex.A4-Will Annapurnamma has taken gold and jewellery from the Gudivada Co-operative Urban Bank. The father of Bramaramba and 1st plaintiffs maternal grandfather are brothers. In the cross-examination he has stated that under Ex.A4 Bramaramba bequeathed seven acres and odd to himself and 5 acres and house to his sister Annapurnamma. His sister's husband was practising Homeopathy, who was maternal uncle to him, and after execution of the Will himself and his sister did not effect partition of the properties covered by Will till 1974-75 which are waste lands and they did not do any cultivation in the said land.
16. P.W.3, who is one of the attestors of the Will and carrying on charcoal business, testified that he was present at the time of execution of the Will and he attested the same and also identified his signature on Ex.A4. Besides himself (P.W.3), family doctor and another person who resides nearby their house attested the document. Under the said Will Bramaramba bequeathed the property situated at Atapaka Village to Annapurnamma. P.W.2 also got some lands under the Will. The scribe has read over the contents of the said Will to the testatrix and all others who were present there. She signed on the document accepting the correctness of it. In the cross-examination when a specific question is posed where the document was written, he stated that document was written in the house of Bramaramba and at the time when Ex.A4 was executed testatrix might be aged about 70 years and she alone was present at that time in the house. He did not remember the family members of Bramaramba who were present at that time and he did not know whether the said family members have attested Ex.A4 or not. Annapurnamma did not reside in the house of Bramaramba at that time. Annapurnamma has got her own house situated at a distance of one furlong from the house of Bramaramba separated by street and denied the suggestion with a view to grab the property Ex.A4-Will was brought into existence.
17. Except this evidence there is no evidence available about execution of the Will.
18. In H. Venkatachala v. B.N. Thimmajamma AIR 1959 SC 443, the Supreme Court held that once the propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits under it that itself is generally treated as a suspicious circumstances attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. Though important feature which distinguishes the Will from other documents, the Will speaks from the death of the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof, which must be satisfied by the party who relies on a document in a Court of law. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. The presence of such suspicious circumstance naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document, as the last Will of the testator. It is true that, if a caveat is field alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free Will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
19. Learned Senior Counsel appearing for the plaintiffs submits that in the absence of plea of suspicious circumstances except denying the Will in para-5 of the .written statement, plaintiffs have discharged the initial burden about execution of the Will by examining one of the attestors, P.W.3 and P.W.2 who was the legatee under the Will. In the absence of denial of execution of the Will deed or allegation of forgery of the Will in the suit defendants are precluded from raising the said plea in the appeal. In the absence of any suggestion to P.W.2 that the Will is forged or not executed by testatrix defendants cannot plea that Will is not genuine. The suspicious circumstance i.e., Annapurnamma got released the gold articles pleadged with the Co-operative Bank under Ex.AS shows that it was acted upon. Therefore, the finding of the lower Court that the plaintiffs established execution of the Will cannot be interfered on mere discrepancy in oral evidence which may be due to long lapse of time from the date of execution of the Will deed till the date when the witnesses were examined in the Court. For the said proposition he placed reliance on the following judgments:
1. Shashi Kumar v. Subodh Kumar
5. KM. Varghese v. KM. Oommen
6. N. Kamalam v. Ayyasay,
20. In Shashi Kumar's case (supra) the controversy was with regard to probate of Will which was opposed contending that the Will was not properly executed, attested and not genuine and the testator did not have testamentary capacity while signing the alleged Will and obtained the same under undue influence, fraudulent misrepresentation and coercion. The District Judge who granted probate with a copy of the Will held that execution and attestation of the Will has been proved and the Will was genuine. On appeal the High Court reversed the judgment of the District Judge and rejected the petitioner for probate. On further appeal the Supreme Court after following the principles laid down in H. Venkatachala v. B.N. Thimmajamma (supra) and the evidence adduced by the parties held that the witnesses are giving evidence almost 8 and 9 years after execution of the Will and discrepancy is not so serious to destroy the value of their evidence. In substance the execution of the Will took place in the afternoon according to both the witnesses; that is not a case where one witness says that, execution took place in the morning while the other says that it took place in the evening, which of course may introduce some infirmity in the evidence. That itself cannot be circumstance to disbelieve the evidence of the witnesses who are present at the time of execution of the Will and accordingly set aside the order of the High Court restoring the order of the District Judge.
21. Indu Bala v. Manindra Chandra (supra), is also a case for grant of probate of the Will, wherein the trial Judge dismissed the suit and refused to grant probate of the Will holding that there are some doubts about the condition of the testator's mind on the relevant date of execution of the Will. On appeal by the plaintiff the Calcutta High Court held that "there was no suspicious circumstance relating to the Will and whatever little suspicion there was has been satisfactorily explained by the plaintiff and accordingly set aside the decree of the trial Court and granted probate of the Will. On further appeal the Supreme Court after following the earlier two decisions viz., H. Venkatachala v. B.N. Thimmajamma and Shashi Kumar v. Subodh Kumar (supra), held that every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person and after considering the evidence on record enumerated 11 suspicious circumstances in para-10 of its judgment and held that there was no suspicious circumstances surrounding execution of the Will and the trial Court was wrong in holding that the circumstances in question were suspicious and the High Court was fully justified in setting aside the judgment of the trial Court and accordingly upheld the judgment of the High Court.
22. In Meenakshiammal's case (supra) the suit of the plaintiff for a declaration and for recovery of the suit property was resisted by the defendants, who are successors of the testator and are in possession of the property. The trial Court dismissed the suit holding that the defendants are in possession of the suit properties bequeathed to them under the Will. On appeal the Sub-Court, Nagapattinam held that defendants are instruments in execution of the Will inasmuch as brought attesting witnesses to the house of the testator and though the testator was hale and healthy no steps were taken to get the Will registered till the testator and no reasons have been given why testator has excluded the children of his own sister; that the Will is written in black ink whereas the signature of the testator is in a different ink and consequently Will was forged and accordingly allowed the appeal setting aside the decree and judgment of the trial Court. The second appeal preferred against the said judgment was allowed by the High Court holding that plaintiffs had not alleged forgery or undue influence in the plaint and in the absence of such plea, it was not open for the lower appellate Court to hold that the Will was procured or forged and accordingly after examining the evidence the High Court came to the conclusion that the execution of the Will by testator was proved and accordingly set aside the judgment of the lower appellate Court restoring that of the trial Court. The Supreme Court has approved the said finding.
23. In Daulat Ram's case (supra), suit was filed by the plaintiff for injunction claiming that she is in possession of the property by virtue of the Will executed in her favour by the testator, which was resisted by the defendants pleading that the Will propounded was prepared in collusion with the scribe and the attesting witnesses and testator died issueless. The trial Court dismissed the suit holding that the testator did not execute any Will in favour of plaintiffs and the earlier registered Will executed in favour of the defendants is valid and by virtue of the same defendants are entitled to the estate left by the testator. On appeal the appellate Court reversed the finding of the trial Court and decreed the suit of the plaintiff observing that plaintiff was daughter of the deceased testator and a valid Will has been executed in her favour revoking/ cancelling the earlier registered Will and she become the owner and therefore entitled to possession of the same. It was further observed that registered Will was procured by the defendants under pressure which was subsequently revoked by the testator by executing the second Will. The defendants who are unsuccessful in second appeal preferred appeal before the Supreme Court in which only suspicious circumstances surrounding the Will was pointed out as the testator has thumb marked the second Will whereas the earlier Will had been signed; and accordingly to show that the testator was physically incapable of executing the Will who was unconscious prior to his death. On examining the evidence it was held that the defendants failed to discharge the burden that the Will executed in favour of the plaintiff was forged or was obtained by playing undue influence or fraud and the second Will is genuine and validly executed by the testator revoking Will it cannot be given effect and accordingly dismissed the appeal.
24. In KM. Varghese's case (supra), the Division Bench of the Kerala High Court after considering the correctness of the judgment in letters of administration proceedings, wherein the trial Court found that the plaintiff failed to prove due execution of the Will and also failed to remove the suspicious circumstance surrounding the Will, held that no form of attestation is prescribed by statute but it is necessary that the witness should put his signature with the intention of attesting it and the attestation must follow execution and not precede it. A witness to be attesting witness need not be labeled as attesting witness and the place at which the signatures or thumb mark of witness is subscribed to the document is not decisive to hold whether witness was or was not an attesting witness. A mere perusal of the document Ex.Al it is difficult to say that there is non-compliance with the provisions contained in Section 63 of the Indian Succession Act. Repelling the contentions that the second witness can never be treated as an attesting witness, since he has signed not as a witness, but as a person who has written the document holding that the Court cannot be so technical to say that since the witness has written words indicating that he is the person who has prepared/written the document Will lose his character as a witness. It is not necessary for the witnesses who are attesting the document to declare in the document itself that they are attesting witnesses and further held in para-36 as under :
It is also pertinent to note that a Will is not compulsorily registerable and a distinction has to be kept in mind in understanding the rigours of requirements of attestation and its proof. It is well settled that a document which compulsorily requires registration has be to be completed before it is presented for registration. The position is different in the case of documents which are not compulsorily registerable. In such cases, it is enough for compliance with the rules of execution and attestation if the executant actually admits the execution before the Sub-Registrar and the identifying witnesses. It is possible to any that Will is not being compulsorily registerable, it is enough if the testator admits the execution before the Sub-Registrar and the identifying witness.
25. After considering the evidence to prove the Will and various decisions held in Para-52 as under :
In considering the evidence of the attesting witness for the purpose of proving the Will, we feel that we have to take into account all the circumstances and we must not be persuaded by the vague statements of the witnesses to hold that the Will has not been proved properly. We are of the opinion where the evidence of the attesting witnesses is vague, indefinite, doubtful or even conflicting upon material points, the Court is entitled to consider all the circumstances of the case and judge collectively therefrom, whether the requirements of the statute have been complied with, it is possible for the Court on an examination of the entire circumstances and evidence to come to a conclusion that the re-collection of the witnesses is at fault or that their evidence is suspicious or that they are wilfully misleading the Court and, therefore, the Court is obliged to pronounce in favour of the Will, disregarding the testimony of the witnesses.
and accordingly allowed the appeal holding that Will is genuine one which has been executed complying formalities of Section 63 of the Indian Evidence Act and there are no suspicious circumstances surrounding the Will and directed to issue letter of administration in regard to properties scheduled in application.
26. From the aforesaid decisions extensively cited by the learned Counsel for the plaintiffs, in all, the principles laid down in H. Venkatachala v. B.N. Thimmajamma (supra) has not been departed but say in full approval and applying the same to the facts of the case it was considered whether the Will is proved or not in the manner prescribed.
27. In the light of the propositions, I have to consider whether the execution of the Will removes all the suspicious circumstances.
28. Admittedly, a registered Will was executed earlier which has now been cancelled. Except cancelling no reasons were assigned why the earlier Will was revoked. After the last paragraph of the Will the signature of P.W.3 who attested the Will was inserted in between the space available above the signature of the testatrix whose signature was with different ink and the contents of the document and the signature of testatrix, two other signatures of attesting witnesses beneath the signature of testatrix are with different ink, P.W.2 in his evidence stated that except P.W.3 no other persons are available and Bramaramba was alive after execution of Ex.A4. He categorically stated that Will was executed in the house of Annapurnamma at Gudivada, Satyanarayanapuram and the Karanam of Anamanapudi Village scribed the Will but he is specifically silent about scribe executing the Will as per the wishes of the testatrix and also reading out the Will after such execution which was accepted by Bramaramba and affixed her signature. Whereas P.W.3 attestor of the Will stated that P.W.2 was present at the time of execution of the Will read over the contents of the Will to the testatrix in their presence she signed the document. In the cross-examination when a specific question was posed with regard to execution of the document, he specifically stated that the document was written in the house of Bramaramba, prior to execution of Ex.A4 he has no acquaintness with the scribe and testatrix was alone in the house at the time when the Will was executed and Annapurna did not reside in the house of Bramaramba, who got her own house at a distance of one furlong.
29. The Supreme Court in H. Venkatachala v. B.N. Thimmajamma (supra), categorically held that even without there being any plea of undue influence, fraud or coercion in respect of execution of the Will by the propounder, the circumstance may raise a doubt whether the testator so acting on his own in execution of the Will, in such circumstances, it would be a part of the initial onus to remove any such legitimate suspicion raised is on the propounder of the Will. The propounders themselves taking prominent part in execution of the Wills which confer on them substantial benefits itself is treated as suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.
30. A reading of the Will-Ex.A4 also discloses that it is Annapurna who served the testatrix, she being the granddaughter of testatrix's father's brother. Even P.W.2 do not speak that Will was executed by the scribe at the instructions of the testatrix. Mere satisfying the requirement of Section 63 of the Indian Evidence Act and attestation of the document is not enough, the propounder has to show by satisfactory evidence that testatrix at the relevant point of time was in sound and disposing state of mind; that she understood the nature and effect of dispositions and put her signature to the document of her own free Will and further in whose favour the properties were bequeathed under the registered Will deed which has been revoked has not been produced nor admitted signatures of testatrix were compared with that of her signatures on Ex.A4 to remove the suspicion in the mind of the Court. In view of the same, it is doubtful whether P.W.2 and Annapurnamma acquired any rights in the suit properties and can transfer them to the plaintiffs and they validly acquire any title over the suit properties. Point No. 1 is accordingly answered.
Point No. 2 :
31. On coming to know that plaintiffs have purchased the property under Exs.A.9 and A10, defendants' vendor- Vallabhaneni Nageswara Rao issued Ex.A20-notice to the plaintiffs stating that he purchased the property from Shivalanka Subbamma through her power of attorney holder and paid earnest money and possession of the property was delivered to him on 1-11-1971 and they are going to obtain the sale deed on paying the balance amount and enjoying the crops, for which the 1st plaintiff replied through telegram stating that property is in their possession and Subbamma has no right. Plaintiff No. l-P.W.I who is the husband of 2nd plaintiff stated that his wife purchased Ac.2.781/2 cts. in item 1 of plain schedule for a sum of Rs. 2,500/- and Ac.3.56 cts., in item No. 2 and subsequently regular sale deed were obtained under Exs.A7 and A8. Similarly on 10-8-1973 he purchased the remaining half from Annapurna and Purna Parvatheesam and obtained a regular sale deeds under Exs.A9 and A10. Except fertilizer card Ex.All issued to them to show that they have been paid levy paddy no other document is filed to prove that they are in possession of the land. He admitted in the cross-examination that there is a dispute with regard to suit land that issuance of notice under Ex.A20 by Vallabhaneni Nageswara Rao and he did not know whether his name or his wife's name was mutated in the revenue record and till 1976 he was at Gudivada, In 1975 he has been residing both at Gudivada and Kaikaluru. Except the card issued by the M.R.O. showing that he is the owner of the property there is no other record. From 1978 to 1983 he was at Atapaka Village and in 1984 he went to Bombay. Till 1987 he was away from Atapaka Village. He also stated that till 1980 the lands were in their possession and they have been cultivating every year, He admitted that he did not file any revenue record to show their possession upto 1980 but once in 1974 he paid land revenue, and from 1974 to 1985 waiver of land revenue and he has not paid any land revenue and denied the suggestion since from 1975 the suit land was never in their possession.
32. To prove the possession of the defendants, defendant No. 3 was examined as D.W.I; defendant No. 1 was examined as D.W.2 and defendant No. 6 was examined as D.W.3 apart from M.R.O. as D.W.4, which is elaborately noted in the trial Court's judgment.
33. D.W.4 testified that the lands in R.S. Nos. 244 and 250 stand in the name of Vallabhaneni Nageswam Rao from 1388 Fasli to 1406 Fasli and his name was shown as Pattedar and name of the enjoyer is Alluri Seetharamamju-2nd defendant. In the cross-examination he stated that in case purchaser of the property submits an application along with title deed his name Will be mutated in 10(i) accounts and Adangal, title holder must also be enjoyer. He did not know in which year Nageswara Rao's name was mutated in the Adangals.
34. The lower Court on issue No. 7 with regard to limitation considered the evidence of defendants in the 'light of Article 65 of the Limitation Act and the plea taken by the defendants in the written statement that the suit is barred by limitation and held unless the defendants plead specifically that they have preferred their title by adverse possession and their possession is animus to enjoy the property hostile to the right and interest of true owner, a presumption can be drawn that the true owner is deemed to be in possession of the property as possession follows title. Under Ex.A20-notice Vallabhaneni Nageswara Rao who claims to have purchased the property from the heirs of Shivalanka Subbamma put up his claim that he is in possession of the property which fact is supported by revenue records and later sold to the vendors' vendors of the defendants. Defendants apart from giving oral evidence are in possession of the property from the date of purchase i.e., in the year 1975 they are also pleading that Nageswara Rao was in possession of the property since from the date he purchased the property under Ex.Bl. His name was also mutated in the revenue records on 23-3-1971 as Pattedar. The lower Court at para 49 though observed that it is not known on what basis the name of Nageswara Rao was mutated in the revenue record, since he being the purchaser under Ex.Bl his name was recorded as Pattedar in the revenue record. The lower Court after considering the various documents and Adalgals held the Adangal extracts show the name of Nageswara Rao as Pattedar from 1975 for a period of 12 years prior to the date of filing of the suit. The said finding of the lower Court has not been challenged by the plaintiffs by filing any cross-appeal.
35. P.W.2 through whom plaintiffs are claiming possession categorically stated in the cross-examination that they were in possession of the land and also admitted the said lands are waste lands and there was no cultivation in the said lands till the execution of the sale deeds.
36. This Court in Adinamyanaswamy's case (supra) after considering Articles 142 and 144 of the Limitation Act, 1908 held that plaintiffs right to recover property already barred by defendant's adverse possession whether specific pleas was taken that possession of the defendants was adverse to the interest of the plaintiffs.
37. In the case of Ram Murti (supra) the Punjab High Court after considering Article 142 and Section 28 of the Limitation Act, 1908 held that the plaintiff has not proved that he is in possession within 12 years of institution of suit and revenue record did not show plaintiffs possession. Therefore, the suit for recovery of possession must fail.
38. In the case of Muthaiah Pillai (supra) the Division Bench of the Madras High Court considered the correctness of the dismissal of the suit in the light of the submissions made that the plaintiff had no knowledge of the transactions pleaded by the defendants and held that there is a great distinction between adverse possession as between strangers and ouster in the case of co-owners. There is a basic difference between the two. In the case of adverse possession, as against strangers it is enough that adverse possession is overt, which should be without any attempt or concealment so that the person against whom time is running if he had exercised due vigilance he would be able to be aware of what is happening. We do not think that it is necessary that adverse possession should be brought home to the knowledge of the owner. After discussing the notice and following the judgment of the Privy Council in Jagdish Narain v. Nawab Said Ahmed Khan AIR 1946 PC 59, upheld the dismissal of the suit.
39. In Mohd. Mohammad Ali v. Jagadish Kalita , it was held as under :
By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his tile and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff's claim to establish his title by adverse possession.
For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.
However, in the event, the case of the defendant was that the predecessors-in-interest of the plaintiff ceased to be his co-sharers for any reason whatsoever, it was not necessary for them to raise a plea of ouster. We may further observe that in a proper case the Court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein.
40. In Vasantiben Prathladji Nayak v. Somnath Muljibhai Nayak , the Supreme Court while considering Article 65 of the Limitation Act held that to establish ouster in cases involving claim of adverse possession the defendant has to prove three elements namely, hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner. In cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises o the plaintiff but it commences from the date when the defendant's possession became adverse,
41. In Karnataka Board of Wakf v. Government of India (supra), it was held as under:
In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nee vi, nee clam, nee precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive hostile and continued over the statutory period.... Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
42. In Saroop Singh v. Banto , it was held that in
terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date of defendant's possession becomes adverse. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence.
43. The defendants in the written statement categorically denied acquisition of title by the plaintiffs and their vendors under the agreements, and in fact, set up a claim that they are in possession of the property having purchased from the grandson of Shivalanka Subbamma, who inherited the said property from Bramaramba.
44. In Ex.A20 notice it is specifically stated that they have entered into an agreement from the grandson of Shivalanka Subbamma and they are in possession of the property and plaintiffs acquire no title to the properties. As already held, if the plaintiffs derive any title, has to file suit within 12 years from the date of acquisition of the said title as held by the Supreme Court in Mohd. Mohammad Ali's case (supra) when the defendants plead that predecessors-in-interest acquires right to the property, it is not necessary for them to raise a plea of ouster and the entire pleadings have to construed so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can be gathered from the cumulative effect of the averments made in the written statement. Not only under Ex.A20 defendants have asserted their title to remain in possession and pleaded that vendors of the plaintiffs have no right and are not in possession. Defendants are in possession from the date of purchase till the date of filing of the suit.
45. In Jagdish Narain v. Nawab Said Ahmed Khan (supra), it was held that where the plaintiff sues in ejectment he can succeed on the strength of his own title. There is no obligation upon the defendant to plead possible defects in plaintiffs title and under this plea he can avail himself of any defect, which such title discloses.
46. The Supreme Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius AIR 1954 SC 526 : (1995) 1 SCR 520, categorically held that the plaintiff in ejectment suit must succeed on the strength of his own title, which can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendant's title in the absence of establishment of his own title carries the plaintiff nowhere.
47. When the defendants discharged the initial burden, namely, that Vallabhaneni Nageswara Rao and thereafter their vendors are in continuous possession from 1975 onwards claiming right to remain in possession, adverse to the title of P.W.2 through whom the plaintiffs purchased the property and once the plaintiffs failed to establish their rightful possession through documentary evidence they are not entitled to recover the possession.
48. The finding of the lower Court on issue No. 7 that though there is no documentary proof placed by the plaintiffs to prove that they are in possession of the suit schedule property from 1977 onwards in the absence of placing better evidence by the defendants, plaintiffs are deemed to be in possession is a perverse finding which is not sustainable and it is accordingly set aside.
49. Appeal is accordingly allowed and the suit of the plaintiffs stand dismissed. No costs.
CRP No. 4448 of 2001 :
50. Learned Counsel for the petitioners fairly submits that the relief claimed in the revision has become infructuous in view of hearing of appeal.
51. Civil revision petition is accordingly dismissed. No costs.
52. In the result, appeal is allowed and revision is dismissed.