Gurijala Savithri And Ors. vs Gurijala Venkateswara Rao And … on 27 April, 2006

JUDGMENT

C.Y. Somayajulu, J.

1. Plaintiffs in a suit for partition are the appellants. For the sake of convenience parties to the appeal would hereinafter be referred to as they are arrayed in the trial Court.

2. The suit was initially laid against seven defendants. 3rd defendant is the daughter of 2nd defendant. 1st defendant is the husband of the 7th defendant. 4th defendant is the brother of 7th defendant. 6th defendant is the mother of 1st defendant. Consequent upon the death of the 4th defendant, defendants 8 to 12 were brought on record as his legal representatives. 8th defendant also died during the pendency of the suit.

3. The case, in brief, of the plaintiffs is that Sitaramaiah (DW2) Sambasivarao (hereinafter referred to as the deceased) and 1st defendant are brothers and are the sons of Punnarao and the 6th defendant, and were residents of Kuchipudi Village of the erstwhile Tenali Taluq. They had little or no property. Seetharamayya separated from the rest of the family long back and the other members continued to live as the members of a joint Hindu family. The deceased absconded from his house and used to stay at Gudivada without any ostensible means of livelihood, and came into contact with the 1st plaintiff, who was brought up by Vallabhaneni Sitaramayya and his wife Bayamma. As the said Vallabhaneni Seetharamayya and Bayamma felt that they can stabilize the deceased by getting him married to the 1st plaintiff, they performed the marriage of the 1st plaintiff with the deceased at Gudivada in their house in 1949. About one year after his marriage with the 1st plaintiff, the deceased vanished and surfaced after four years, and took the 1st plaintiff to Tenali, where they used to stay in the house of Yedla Annapurnamma in Gangannapeta. The deceased used to run a beedi shop and later a cycle shop. Thereafter he started a small ‘kaka’ hotel. It was at that time that 1st plaintiff came to know about the deceased having another wife by name Venkata Laxmi (2nd defendant) his sister’s daughter, who was also living at Tenali, with the parents of the deceased elsewhere. In about 1962 all of them left Tenali and migrated to Guntur. The deceased took the house belonging to Yedla Chalapathi Rao and his wife Venkata Subbamma in the 2nd line, Gunturuvarithota on lease and used to live with 1st plaintiff there, while keeping defendants 1 and 2 and the other members of their family at Railpet. The deceased and 1st defendant started a small coffee hotel, which later became a hotel of repute and was named ‘Central Cafe’. With the income realised by them from that business they purchased the building in which they were running Central Cafe in 1965, and have also purchased several other properties i.e., items 1 to 10 and 12 of the plaint schedule and obtained the sale deeds in the names of defendants 2 to 7, benami for their benefit. 5th defendant who is the nephew of the deceased and the 1st defendant was working in the Cenral Cafe. 1st defendant and the deceased took ‘Komala vilas’, an old Udipi hotel, on the main road on lease and changed its name as Central Cafe. While so 1st plaintiff gave birth to the 1st child of the deceased i.e. the 2nd plaintiff on 12-8-1972 in Padmavathi Nursing Home. 3rd Plaintiff was born to them on 9-5-1976 at Saint Joseph’s Hospital, Guntur. The deceased admitted the 2nd plaintiff in Saint Joseph’s Nursery School and had also opened Kiddy Bank accounts in Andhra Bank in the names of plaintiffs 2 and 3. The entire locality where the deceased and plaintiffs stayed treated the deceased and the 1st plaintiff as husband and wife and plaintiffs 2 and 3 as their children. The deceased used to stay with plaintiffs for some time and with defendants 2 and 3 for some time. In fact 1st plaintiff and the 2nd defendant became friends and they used to visit each other’s houses. One day the deceased was stabbed by an employee in the hotel and so he died in the hospital on 30-6-1980 while undergoing treatment for the said injuries. Taking advantage of his sudden death and the illiteracy of the 1st plaintiff, defendants 1 to 7 in order to deprive the plaintiffs of their legitimate rights, did not even mention their names in the long list of family members, published in the news papers, mourning the death of the deceased. When the 1st plaintiff questioned the defendants about the same, they, by offering some money, tried their best to persuade her to leave the town without making any claim to the property of the deceased. Hence the suit for partition of their share in the half share of the deceased in the plaint schedule properties.

4. Defendants 1, 6 and 7 filed a common written statement inter alia contending that the allegation that 1st plaintiff is the wife and plaintiffs 2 and 3 are the children of the deceased is not true. The deceased, who married 2nd defendant on 15-11-1953 at Kuchipudi and who begot the 3rd defendant through her, did not marry any other lady at any time. It is only after receiving the suit summons did they come to know about the existence of the plaintiffs and not before. Enquiries got made by them thereafter revealed that 1st plaintiff was married to Ilavala Venkata Reddy of Namalapuram Village and lived with him for some time and gave birth to a son by name Lakshma Reddy and thereafter she developed extramarital relations with others and became a woman of loose morals and discarded her husband and son and went away from the village and began to live at Guntur by running a brothel house for some time. The allegation that 1st plaintiff was brought up by Vallabhaneni Seetharamayya and his wife and that they got her married to the deceased at Gudivada and that she and the deceased lived together at Tenali in the house of Annapurnamma, and that the deceased used to stay both in that house and the house where 2nd defendant and Ors. were living, and that after some time 1st plaintiff and 2nd defendant became close are all not true. Enquiries got made by them revealed that the deceased developed physical relationship with 1st plaintiff only at Guntur and was visiting her now and then from about 7 or 8 years prior to his death, by keeping his such visits a secret. That illicit relation might have emboldened the 1st plaintiff to file the suit on behalf of the plaintiffs, falsely claiming herself as the wife and plaintiffs 2 and 3 as the children of the deceased. She might have designedly given the name of Sambasivarao as her husband when she delivered plaintiffs 2 and 3 and must have manipulated the entries relating to admission of plaintiffs 2 and 4 in the school. Deceased opening accounts and depositing money in the names of the plaintiffs is not known to them. 1st plaintiff and the deceased were never treated as wife and husband by the society. Though 1st defendant and the deceased were living in item No. 9 of the plaint schedule, they were not members of a joint family and were having separate mess and were partners in the hotel business only. Prior to his death, the deceased executed a Will on 14-5-1980 in a sound and disposing state of mind, which was his last Will and testament, as per which 2nd defendant became entitled to the properties of the deceased after his death. The allegation that the plaint schedule properties were acquired from the income derived from the hotel business in the names of defendants 2 to 7 is not true. Except in item No. 11 of the plaint schedule the deceased did not have any right or interest in the other items of the plaint schedule. The parents of the 7th defendant made a cash gift of Rs. 15,000/-to her at the time of her marriage with the 1st defendant. From out of that amount she purchased item Nos.l and 2 of the plaint schedule, and did money-lending business for some time. She along with the 2nd defendant ran a dairy farm in item No. 10 for two or three years and thereafter they jointly purchased item No. 9 of the plaint schedule in 1967 with their own money. Items 7 and 8 of the plaint schedule were purchased by the 4th defendant with the sale proceeds of his land at Pothumarru Village and from out of his share of profit in the hotel business. Some time prior to the suit, 1st plaintiff demanded cash payment saying that she was the kept mistress of the deceased, even without disclosing the existence of plaintiffs 2 and 3, and as that demand was acceded to, she filed the suit with false allegations.

5. Defendants 2 and 3 filed a separate common written statement inter alia contending that the marriage between the 2nd defendant and the deceased took place on 15-11-1953 at Kuchipudi Village and that the 3rd defendant is their only issue and as there was no marriage between the 1st plaintiff and the deceased, 1st plaintiff is not the wife and plaintiffs 2 and 3 are not the children of the deceased, and that they were not aware of the existence of plaintiffs prior to the filing of the suit and as the deceased executed a Will on 14-5-1980 in a sound and disposing state of mind prior to his death on 30-6-1980 bequeathing his properties to the 2nd defendant, plaintiffs, in any event, cannot claim any share in the property left behind by the deceased. Enquiries got made by them revealed that the deceased was having illicit intimacy with the 1st plaintiff at Guntur and was visiting her house occasionally since about 8 years prior to his death, by keeping that relationship a secret and so 1st plaintiff might have filed the suit by fabricating some documents taking advantage of her illicit intimacy with the deceased. Defendants 2 and 7, who carried on money lending business for some time and ran dairy farm, had jointly purchased item No. 9 of the plaint schedule in 1967. Item No. 12 belongs to the 5th defendant, who sold away the same to the 1st defendant and 3rd defendant under two registered sale deeds. Item No. 13 belongs to the 1st defendant and so plaintiffs are not entitled to any relief.

6. In the written statement filed by him the 5th defendant, while adopting the pleas taken in the written statement of defendants 2 and 3, inter alia contended that he, after making profit in the business of cigars etc., had purchased a site and had become the partner of the deceased and the 1st defendant in their business and from out of his share of profits in that business he constructed the building in the site purchased by him, which is shown as item No. 12 of the plaint schedule and leased it out to the firm of which he, the deceased, 1st plaintiff and five others were partners and later sold it away to defendants 1 and 3 for a valuable consideration under two registered sale deeds dated 26-3-1981 and 3-4-1981.

7. Defendants 8 to 12 filed a memo adopting the written statement of defendants 2, 3 and 5.

8. Plaintiffs later got amended the plaint schedule by including the jeep ADI 5555 as item No. 14 of the plaint schedule. 1st defendant filed his additional written statement inter alia contending that the said jeep, which belonged to the Central Cafe, was sold away on 4-2-1982 to Tarakeshwara Enterprises Sattupalli and as the purchaser is in possession and enjoyment thereof, it is not available for partition. Defendants 6 and 7 filed a memo adopting the said additional written statement of the 1st defendant.

9. Basing on the above pleadings, the trial Court framed 8 issues for trial. In support of their case, plaintiffs examined the 1st plaintiff as P.W. 1 and 14 others witnesses as PWs. 2 to 15 and marked Exs. A1 to A53. In support of their case, defendants examined the 1st defendant as D.W.I and 2nd defendant as D.W. 9, 5th defendant as D.W. 10 and seven other witnesses as D.Ws. 2 to 8 and marked Exs. B1 to B33. On the basis of the evidence on record, the trial Court held on issue No. l, whether the 1st plaintiff is the legally wedded wife and plaintiffs 2 and 3 are the children of the deceased, against the plaintiffs, on issue No. 2, whether the Will dated 14-5-1980 alleged to have been executed by the deceased is true and valid, against the defendants, on issues 3 to 7 i.e., what are the properties of the deceased divisible between the plaintiffs and defendants 1 and 2, whether items 1 and 2 of the plaint schedule are the self acquired properties of the 7th defendant, whether items 7 and 8 of the plaint schedule belong to 4th defendant, whether item No. 9 of the plaint schedule belongs to defendants 2 and 7 and whether the 1st defendant is not liable to render the account from the income on the divisible properties, observed that inasmuch as issue No. l was decided against the plaintiffs, issues 3 to 7 lose their importance and since item Nos.l and 2 of the plaint schedule were purchased by the 7th defendant under Ex.B26 registered sale deed, and since item Nos. 7 and 8 of the plaint schedule were purchased by the 4th defendant and since there is no reliable evidence to show that that item was purchased in the name of the 4th defendant benami for the benefit of 1st defendant and the deceased, and since item No. 9 of the plaint schedule was purchased by defendants 2 and 7 under Ex.B15 and since there is no reliable evidence to show that it is a benami transaction and since the 1st defendant and the deceased were running the hotel business as a partnership concern and since the suit is not for dissolution of the partnership, the suit as framed in respect of partnership business is not maintainable and as such 1st defendant is not liable to render any account and consequently on issue No. 8, relating to the relief, dismissed the suit with costs. Aggrieved by the dismissal of their suit plaintiffs preferred the appeal and aggrieved by the finding on issue No. 2, defendants 2 and 3 preferred cross-objections.

10. The points for consideration are :

1. Whether the 1st plaintiff is the wife and plaintiffs 2 and 3 are the children of the deceased ?

2. If so, to what share are they entitled to and in which of the plaint schedule properties ?

3. Whether the Will dated 14-5-1980 relied on by the defendants is true and valid ?

Point No. I:

11. The contention of Sri Movva Chandra Sekhar Rao, learned Counsel for the plaintiffs, is that since the voluminous documentary and oral evidence adduced by the plaintiffs shows that 1st plaintiff and the deceased were living as husband and wife and since the deceased acknowledged the paternity of plaintiffs 2 and 3 while admitting them in school and making deposits in banks in their names, and claimed himself to be the husband of the 1st plaintiff while admitting her in hospital and signed the consent declaration for the operation of the 1st plaintiff and had also made deposits in her name in bank and purchased jewellery for her as her husband and since Ex.A. 29 voters list also shows that the deceased and the 1st plaintiff lived in the same house as husband and wife, it is easy to see that there was a marriage between them. Relying on Smt. Nirmala and Ors. v. Smt. Rukminibai and Ors. , S.P.S. Balasubramanyam v. Suruttayan @ Andali Padayachi , S.P.S. Balasubramanyam v. Suruttayan @ Andali Padayachi , Ranganath Parmeshwar Panditrao Mali and Anr. v. Eknath Gajanan Kulkarni and Anr. and Badri Prasad v. Dy. Director of Consolidation and Ors. , he contended that a presumption of valid marriage between the 1st plaintiff and the deceased can be drawn on the basis of the above evidence. Relying on Kirtan Sahu after him Uma Sahuani and Ors. v. Thakur Sahu and Ors. and Kabul Singh v. Kundan Singh and Ors. , he contended that entries in Ex.A29 which describe the 1st plaintiff as the wife of the deceased are conclusive and so the finding of the trial Court that there was no marriage between the 1st plaintiff and the deceased is liable to be set aside.

12. The contention of Sri B. Adinarayanarao, learned Counsel for the defendants, is that since 1st plaintiff claimed herself to be the 2nd wife of the deceased and since the marriage of the deceased with the 2nd defendant took place on 15-11-1953, there could be no second marriage between the 1st plaintiff and the deceased in 1949 as claimed by the plaintiffs; and since the evidence of D.Ws. 7and 8 clearly establishes that the 1st plaintiff is a woman of ill repute, the deceased could not have married her and could not have begotten plaintiffs 2 and 3 through her. It is his contention that since there are several discrepancies in the evidence of P.Ws. 1, 2, 3, 9 and 12 and since the evidence of P.Ws. 4 and 7 relating to birth of 2nd plaintiff in their nursing home cannot be believed in the absence of record maintained in the hospital and since no presumption of a marriage with another woman can be drawn if a man is already married in view of the ratio in Dalavayi Nagarajamma v. State Bank of India and Ors. , and since the trial Court, after referring to the entire evidence on record, gave cogent reasons for its conclusion that 1st plaintiff is not the wife and plaintiffs 2 and 3 are not the children of the deceased, there are no grounds to disturb that finding.

13. In support of his contention that there was a marriage between the 1st plaintiff and the deceased, the learned Counsel for the plaintiffs relied on oral evidence the 1st plaintiff as P.W. 1, P.W. 2 the land lady of the house in which P.W. 1 is living, P.W. 3 the wife of Seetharamayya, P.W. 8 an erstwhile manager of Central Cafe, and P.Ws. 9 and 10 residents of a colony near to the colony where 1st plaintiff is residing, P.W. 12 the Ex-municipal Councilor of the ward next to the Ward in which 1st plaintiff is living, and P.W. 13 a tenant of a portion in the house of P.W. 2, and Exs. A.l to A. 53.

14. Coming to the evidence adduced by the defendants, D.W. 1 is the 1st defendant. D.W. 2, is the eldest of the brothers the deceased and 1st defendant. D.W. 3, paternal uncle of the deceased and 1st defendant, is examined to show that there was marriage between the deceased and 2nd defendant and that the deceased did not marry the 1st plaintiff. D.Ws. 4 to 6 are examined to prove Ex. B. 28, the Will, said to have been executed by the deceased. D.Ws. 7 and 8 are examined to show that the 1st plaintiff is a woman of easy virtue and was running a brothel house. D.W. 9 is the 2nd defendant. D.W. 10 is the 5th defendant. The evidence of D.Ws. 4 to 6 is not relevant for deciding this issue. The trial Court did not believe the evidence of D.Ws. 7 and 8.

15. The specific case of the 1st plaintiff is that she was brought up by Seetaramaiah (husband of P.W. 3) and that they performed her marriage with the deceased in the early part of 1949. The date and month in which the marriage between them was performed is not mentioned either in the plaint or by P.W. 1 or P.W. 3. Very significantly the plaint is silent about the background of the 1st plaintiff i.e. where she was actually born and when and how she went to the house of Vallabhaneni Sitaramayya for being brought up them. The brief averment in the Para-3 of the plaint in that regard is
1st plaintiff is the 2nd wife of the said Sambasivarao, the marriage having been solemnised between them in the beginning of 1949 in Gudivada, in the house of Vallabhaneni Sitaramayya and his wife Bayamma, who brought up the 1st plaintiff and gave her in marriage to the said Sambasivarao.

The evidence of 1st plaintiff and P.W. 3, wife of Sitaramayya, is relevant to find out if there actually was a marriage between the deceased and 1st plaintiff in 1949 as alleged in the plaint because the other witnesses examined by the plaintiffs did not either state that they attended their marriage or claimed knowledge of the marriage anybody can say the ceremonies of marriage between them. P.W. 1 in her chief- even without undergoing the ceremony of examination stated marriage.

Our marriage took place at Gudivada in the house of Vallabhaneni Sitaramayya. Sitaramayya and his wife performed my marriage. From beginning I was brought up in their house.

During cross-examination she stated that she does not know her parents and that Sitaramayya and Lakshmibayamma belong to Komaravolu and that she did not enquire from them about her parents and that they did not search for any other match and performed her marriage when she was aged 13 or 14 years, with the deceased, after ascertaining her willingness and that she does not remember in which ‘peta’ (colony) or street of Gudivada they were living and that she along with Lakshmibayamma was mostly living in Komaravolu and used to go to Gudivada now and then, and cannot say her age when she first went to Gudivada and whenever Lakshmibayamma and her husband stayed at Gudivada for purpose of medical treatment for herself and her father, and for the purpose of education of her children, they used to stay at Gudivada, and till she attained the age of 20 years she was moving between Komaravolu and Gudivada, and cannot say the name of the landlord of Lakshmibayamma (PW3) at Gudivada, and that Lakshmibayamma mainly lives at Komaravolu and that she did not make independent enquiry whether she is the first wife or the 2nd defendant is the first wife of the deceased and that she attended the marriage of 3rd defendant but would not be seen in the photographs taken on that occasion along with the other members of the family of the deceased. She gives the details of the ceremonies in her marriage. P.W. 1 giving details of the ceremonies of marriage undergone will not be of help, without actual proof of performance of the marriage, because

16. The evidence of P.W. 3 is that she is a resident of Komaravolu and that her husband Sitaramaiah is sick and underwent an operation and that her father saw the 1st plaintiff, when she was aged about 6 or 7 years, near the bus stand at Komaravolu, when she caught him and started weeping, and brought her to his house and as she was not having children she brought her up, and about one or two years later she begot a son and had later performed the marriage of the 1st plaintiff when she was aged 13 years with Sambaiah (said to be the alias of the deceased) at Gudivada in the house of Lingam Venkata Krishnaiah an that the marriage was consummated about 5 or 6 months later and that 1st plaintiff stayed in her house for five years after her marriage, and that the deceased used to come to the house once in a week or 10 days for some time, and later once in a month or two for four years, and that she does not know the caste of 1st plaintiff. During cross-examination she stated that her father brought P.W. 1 to her house about 35 or 40 years back (she gave evidence on 16-9-1983) and as P.W. 1 did not tell her name they named her as Savitri, and that Gudivada is about five miles from Komaravolu and that they did not give a police report, or a report to the village officers about their finding an unattended child, and also did not try to verify if that child (P.W. 1) came from any of the neighbouring villages and that her cousin Laxminarayana, who died about 20 years back, informed her that the deceased expressed his desire to marry P.W. 1, and that the deceased did not reveal his antecedents and when her father was undergoing treatment for his eyes, they performed the marriage of P.W. 1, about 2 or 3 months after its finalization, by inviting their relatives at Komaravolu, but there is no documentary evidence to show the marriage, and that the marriage was not consummated immediately as it was performed in a rented house. During re-examination she stated that the house in which the marriage of P.W. 1 was performed was purchased by them about 20 years back.

17. The evidence of P.W. 3 that as the 1st plaintiff did not tell her name, she named her as “Savithri” is difficult to be believed, because a person aged 6 or 7 years, would know her name at least, if not anything else. The plaint does not show that 1st plaintiff was found by the father of P.W. 3 at Komaravolu bus stand, and that he took her to his house and brought her up at ‘Komaravolu’. From the portion of the plaint extracted in Para 15 supra it is clear that the plaint case is that 1st plaintiff was brought up by Vallabhaneni Sitaramayya and his wife Bayamma ‘at Gudivada’, but not at ‘Komaravolu’. The plaint also does not show that Bayamma is the alias of P.W. 3. Since the answers given by P.W. 1 during cross-examination and the evidence of PW. 3 about P.W. 1 being fostered and brought up at Komaravolu does not have a foundation in the plaint, to get over the possibility of rejection of their evidence, they might have stated that PW3 and her father used to shuffle between Komaravolu and Gudivada and used to live in rented houses at Gudivada. Since the specific allegation in the plaint is that the marriage of the 1st plaintiff was performed with the deceased in Gudivada, in the house of Vallabhaneni Sitaramayya and his wife Bayamma”, the evidence of P.W. 3 that the marriage of the 1st plaintiff was performed in a rented house at Gudivada, is clearly an afterthought.

18. It is not the evidence of P.W. 1 (nor is it the plaint case) that she was found by the father of P.W. 3 at Komaravolu Bus stand, as stated by P.W. 3. For the first time P.W. 3 stated that P.W. 1 was found by her father at Komaravolu Bus stand and brought her to the house. But the evidence of P.W. 1 reads as if it is Sitaramayya and his wife P.W. 3 that have brought her up. As stated by PW3, even assuming that Sitaramayya was sick, since he, who could have been examined on Commission, was not examined on Commission, an adverse inference has to be drawn against the plaintiffs, as his evidence would have thrown light on the efforts made by him to find out the native place etc. of P.W. 1, as keeping an unattended or abandoned child, found at the bus stand, in his house, without informing the police and/or the village officer is some what odd and unnatural, as, no ordinary prudent man would take the risk of taking home an unknown child aged about 6 to 7 years even without trying to find out her antecedents. His evidence also would have revealed the efforts made by him to find out the antecedents of the deceased before his giving PW1 in marriage to the deceased, as no ordinary prudent man would give the girl being brought up by him to a person whose antecedents are not known to him.

19. Since there, admittedly, is no documentary evidence relation to the marriage between the deceased and P.W. 1, in the shape of invitation card or photos, question whether there was a marriage between the deceased and P.W. 1 has to be decided only on the basis of the oral evidence of PWs. 1 and 3. For reasons best known to the plaintiffs none of the close relatives of PW3, who according to the evidence of PW3 have attended the marriage of PW1 and the deceased, and the purohit or his deputy, are examined. The evidence of PW3 is that her cousin Laxminarayana, with whom the deceased was friendly, had informed her that the deceased “expressed his desire to marry P.W. 1, if given”. The evidence on record shows that the deceased was having parents, brothers and sisters and was also having some property. So it is difficult to believe that he left his house and his family members and went to a neighouring district and hid his identify, and married a girl even without giving information about his marriage to the members of his family. In the absence of any independent evidence to show that the deceased and Laxminarayana, said to be a cousin of PW3, were friends, merely basing on the sole evidence of P.W. 3 that her cousin Laxminarayana used to come with the deceased and that her cousin informed her that the deceased expressed his desire to marry P.W. 1, if she is willing, cannot be the basis for holding that her husband though fit to settle the match between P.W. 1 and the deceased. In fact except the ipsi dixit of PW3 there is nothing on record to show that she, in fact, had a cousin by name Laxminarayana, and that he and the deceased were moving together and were going to Gudivada frequently.

20. The undisputed document, which gives an indication about the age of P.W. 1 and the deceased is Exs.A4, the voters list of 1977 of Guntur I Assembly constituency, wherein P.W. 1 is described as ‘Savitri Devi Gurajala’ and is shown to be aged 37 years and the deceased is shown as aged 45 years. Why the 1st plaintiff gave her name as ‘Savithri Devi’ at the time of enumeration, when she described herself as Savitri in the plaint, and when it is also not the case of the plaintiffs that 1st plaintiff is also known as Savithri Devi\ is not known. If P.W. 1 was aged 37 years in 1977, she must have been born in or about 1940 and so by 1949 she must have been aged around 9 years, and the deceased must have beeri aged about 17 years, as his age is shown as 45 years in Ex. A4. Since Child Marriage Restraint Act, 1929 was in force at that time, and since that Act prescribes punishment for parents and/or guardians, who are parties to the marriage between a minor male, and a girl under the age of 14 years, it is difficult to believe that Sitaramayya and P.W. 3 would have taken the risk of performing the marriage of a girl aged about 9 years with a boy of about 17 years, by inviting their friends and relatives.

21. The evidence of P.W. 3 that for 5 years after the marriage, the deceased used to come to the house once in a week or 10 days, and later once or twice in a month for 4 years after the marriage with the 1st plaintiff, is contrary to the averment in the plaint, because the averment in Para 4 of the plaint is
They (P.W. 1 and the deceased) lived together for an year in Gudivada. Sambasivarao periodically going about and returning to the wife who stayed 1; in Sitaramaiah’% house as before. As the end of the year Sambasivarao chose to go away as before and did not return for four years. Later he came back to Gudivada and brought the 1st plaintiff to Tenali and set up the family.

The evidence of P.W. 3 clearly shows that they were not having a house at Gudivada till about 1963 (as she stated in her re-examination that the rented house was purchased by them about 20 years back) and that the marriage of the 1st plaintiff and the deceased was performed in a rented house, and were residing mostly at Komaravolu. So question of the deceased going ‘back to Gudivada’ to take the 1st plaintiff to Tenali, as alleged in the plaint, cannot arise.

22. A reading of the evidence of PW3 shows that she is either a person interested in or is a friend for 1st plaintiff and came to Court to give evidence on her behalf with a view to help her. Since pleadings would be drafter as per the instructions given by the parties to their Counsel, in the facts and circumstances of the case, I am of the opinion that 1st plaintiff, without knowing the year of purchase of the house of P.W. 3 at Gudivada, on a confidence that PW3 would positively support her case, might have informed her advocate in the trial Court that her marriage with the deceased was performed at ‘Gudivada’ in the beginning of 1949 in the house of Vallabhaneni Sitaramayya. The cat was out of the bag when P.W. 3 stated that the house in which the marriage of P.W. 1 was performed was purchased about 20 years prior to her giving evidence in 1983.The year of the alleged marriage between the deceased and 1st plaintiff as “the beginning of 1949” must have been chosen with a view to get over the effect of the Madras Hindu (Bigamy, Prevention and Divorce) Act, 1949 (the Act) about which I would make a reference a little later.

23. Since there is no documentary evidence in the shape of letters addressed to and received by PW1 at Tenali, and/or voters list of Tenali, or any other independent evidence of any witness from Tenali or the evidence of Yedla Annapurnamma, the alleged landlady of 1st plaintiff at Tenali, to show that the 1st plaintiff and the deceased lived at Tenali, the ipsi dixit of P.W. 1, with an attempted corroboration by P.W. 3, that P.W. 1 and the deceased lived at Tenali, cannot be believed or accepted. For reasons to be mentioned by me a litter later, 1st plaintiff (PW1) having known about the past history of the deceased, with a view to fortify her version that there was a marriage between her and the deceased in 1949, and that she was living with him since then, with a view to fill up the gaps, must have invented the theory of her being shifted to Tenali from Gudivada and from there to Guntur.

24. Now I will consider the documentary evidence adduced by the plaintiffs to show their relations with the deceased chronologically, Ex.A32 and A33, bills dated 28-8-1969 relating to transactions between Hazi Suleman Khan and Mohaboob Khan and the deceased, are the documents earliest in the point of time produced by the plaintiffs. They are of no help to the plaintiffs because the name of the 1st plaintiff does not find place therein, and since 1st plaintiff did not explain how and when she came into possession of those documents. As they are not mentioned in the list of documents annexed to the plaint it is clear that they were not filed with the plaint, and were produced subsequently. So they can be ignored.

25. The first document to show that the deceased had a connection with the 1st plaintiff is Ex.A-52. It is a bunch of papers issued by St. Joseph’s Hospital, Guntur. It contains a pink ‘Out Patient’ Department Card, a yellow card and several white chits. The white chits can be ignored because they do not in any way help in deciding the point for consideration. The yellow card, containing the date 10-3-1973, shows that Gurijala Savitry’1 of Potthurivari Thota, a female aged 24 years, went to the hospital with a complaint of ‘numbness of the right hand since 3 months’ and took treatment in that hospital. The pink card is issued in the name of ‘Gurijala Savithri, Potthurivari Thota, Guntur’, Kamma, aged 36 years. Here, I have to state that PW3 stated that she does not know the caste of PW1. When the lady who alleged brought up her from her childhood i.e. PW3, herself stated that she does not know the caste of PW1, how PW1 could say her caste as ‘Kamma’ is not explained by PW1. The date mentioned on the right top corner ’12-6-81′ with a different ink, in the pink card in Ex.A52, can be ignored, because the person to whom the card was issued first went to the hospital in November 1975 as seen from the entries therein. In fact, Ex. A52 was produced, after the commencement of the trial, to show that the deceased gave a ‘no objection’, or ‘consent’, for the operation of the 1st plaintiff under anesthesia on 9-5-1976, when she went for the delivery of the 3rd plaintiff. The pink card in Ex.A52, which contains the obstetric history, reads

3rd gravida’ 1st died, 3rd alive,’ ‘present history and complaint’ ‘complex labour

1 alive

LSCS for previous C.S. Mother 3rd

Boy 3 kgs 300 gms.

If the age of the 1st plaintiff mentioned in the yellow card, as 24 years on 10-3-1973, is taken into consideration, 1st plaintiff must have been born in 1949. If the age of 36 years mentioned in the pink card, prepared in November 1975, is taken into consideration, she must have born in or about 1939. Be that as it may, the pink card which is said to have been prepared when the 1st plaintiff was taken to the hospital for the birth of the 3rd plaintiff, clearly shows that 3rd plaintiff is the 3rd child of the 1st plaintiff. It is significant to note that both the yellow and pink cards do not mention the husband’s name of the 1st plaintiff, According to the entry in the pink card the 1st child of the 1st plaintiff died and 2nd child is alive and 3rd child is a boy. The specific allegation in Para 6 of the plaint is
While so the 1st plaintiff and Sambasivarao were blessed with their 1st child i.e., the 2nd plaintiff on 12-8-1972 at 11.15 p.m

If we read the said averment in conjunction with the entry in the pink card in Ex.A52, it has to be taken that the 1st child of the 1st plaintiff, who is said to have died (as mentioned in Ex.A52), was not that of the deceased.

26. Chronologically the next document is Ex.A34. It shows that on 4-9-1973 1st plaintiff purchased pearls weighing 10 gms 250 mg for Rs. 600/- and obtained that receipt in the name of the deceased. It does not contain the signature of the deceased.

27. learned Counsel for the plaintiffs, by strongly relying on the evidence of PW. 3 and Exs. A1 and A3, contended that the deceased and the 1st plaintiff were having relationship even long prior to 1965.

Ex.A3, dated 15-9-1980, issued by P.W. 6, reads
This is to certify that Mrs. Gurijala Savithri W/o Mr. G. Sambasivarao had D&C operation in my Nursing Home on 10-12-1965 for sterility.

The evidence of P.W. 6 does not show that she had any previous acquaintance with the deceased. In fact her evidence, during cross-examination, shows that P.W. 1 went to her for treatment in 1965 stating that she has no children and as the oral treatment prescribed by her for 6 months did not prove fruitful, she performed D&C operation on her, and that Sambasivarao was not her patient, and that she had seen him only when he came with the 1st plaintiff. Who is the ‘Sambasivarao” spoken to by P.W. 6 that went along with PW1 to the hospital of PW6 is not known, because PW6 admittedly does not know the deceased. This apart P.W6 during cross-examination clearly stated that she issued Ex. A3 without looking into the records and that the date 10-12-1965 mentioned in Ex. A3 is the date mentioned by PW1. So Ex. A3 certificate issued by P.W. 6 to P.W. 1, basing on the strength of the statement made by P.W. 1 and without verifying the records, can have no evidentiary value. Therefore, neither Ex. A3 nor the evidence of P.W. 6 is of any help to plaintiffs to show that 1st plaintiff and the deceased were living together by or prior to 1965.

28. Exs. Al and A4 and the evidence of PWs. 4 and 7 are also not of help to establish that there is a marriage between the deceased and the 1st plaintiff for the reasons to be given while considering the paternity of plaintiffs 2 and 3.

29. It should be stated that the learned Counsel for the plaintiffs feebly tried to contend that the marriage of the deceased with the 1st plaintiff was the first marriage and his marriage with the 2nd defendant was the second marriage and the averment in the plaint could be an accidental slip or typographical error. I am not able to accept the said contention, as plaintiffs, in fact, went to trial on the basis that 1st plaintiff is the 2nd wife of the deceased. PW2 clearly stated in her cross-examination that the deceased.

told me that he has two wives and PI (1st plaintiff) is his 2nd wife

There is no possibility for the 1st plaintiff becoming the 2nd wife of the deceased in 1949, when his marriage with the 2nd defendant was performed in 1953, and since it is not the case of the plaintiffs that the deceased married any other woman prior to 1949. Obviously, plaintiffs in their anxiety to project the 1st plaintiff as the wife of the deceased, probably on an assumption or belief that he must have married the 2nd defendant prior to 1949, and knowing that they cannot claim a valid second marriage between the deceased and the 1st plaintiff in the later part of 1949, in view of the Act, which came into force on 29-3-1949, must have purposely and deliberately alleged that the marriage of the 1st plaintiff took place in the early part of 1949, so that it would not become a bigamous marriage and thereby void as per the provisions of the Act.

PW3 stated as follows in her cross-examination:

Even before I went to Tenali, we came to know that Sambaiah has another wife living. When my father asked them about it, he admitted that he married twice and did not tell us when he married her.

She also stated:

P.W. 1 did not become pregnant while at Tenali….Daughter was born to P.W. 1, 10 or 12 years after she came to Guntur. Seemantam was performed at Guntur to P.W. 1. We invited the neighbours to that function. Sambaiah was sick then as he was injured. No photos were taken…. The daughter of P.W. 1 was named Vidya Rani.

The above answers of PW3 if at all show her keen interest in PW1. Both P.Ws. 9 and 10 during cross-examination stated:

I do not know whether P.W. 1 and the said Sambasivarao were married or not

In view thereof, merely on the basis of the interested evidence of PWs. 1 and 3, it cannot be said that there was a marriage between the deceased and 1st plaintiff.

30. Exs. A27 and A28 Radio licenses containing the address of the deceased as a resident of Kothapeta, and Exs. A15 to A26 cal gas receipts, are also produced by the plaintiffs to show that the deceased was living with them. The cal gas receipts are from 1977 onwards but not before. Here it has to be stated that in the appendix of evidence to the judgment of the trial Court Ex.A15 is shown to be dated 21-3-1972, when it actually bears the date 21-3-1977. Similarly, the date of Ex.A18 is wrongly shown as 11-11-1962 in the appendix of evidence to the judgment of the trial Court. The year mentioned in Ex. A18 is not clear. But it can easily be seen that it was issued in or after 1979 only, because it is a receipt in pink colour and Ex. A19 and Ex. A20 receipts which are also in pink colour one of the years 1980 and 1979 respecting. The other receipts are yellow and white in colour, and all those receipts, except Ex. A15, issued in 1977, show the phone number as 22955. In Ex. A15 dated ’21-84977′ the phone number is given as 21949 PP and APGST Number is mentioned as 733 dated 7-11-1963. So that company could not have been in existence in 1962. In fact Ex. A18 contains the APGST number of 1981 and CST number dated 8-11-1974. So that bill, could not, in any event, have been issued in 1962, and must have been issued subsequent to 8-11-1974 only. In view of the fact that the other pink colour receipts are of the years 1979 and 1980 it can be presumed that it was issued in 1979 or 1980. No gas receipt prior to 1977 is filed into Court. All these documents show that the deceased kept his radio in the house of 1st plaintiff and took a gas connection for the use of the 1st plaintiff while living with her in a house as corroborated by Ex. A4 voters list for 1977. It is at that time the deceased might have taken Ex. A32 and Ex. A33 with him either accidentally or otherwise, and left them in the house of PW.l

31. From the above oral and documentary evidence adduced by the plaintiffs, and from the admissions of defendants in their written statement that the deceased developed illicit intimacy with P.W. 1 about 7 or 8 years prior to his death, it is easy to see that the deceased took the house of P.W. 2 on lease and kept the 1st plaintiff in that house and was frequenting that house from about 1973.

32. Ex. A4 entry in the voters list at S.Nos. 174 and 175 shows, that the deceased and the 1st plaintiff were living in the house bearing D. No. 14-2-33 (A) during 1977. S. No. 176, immediately next to the entry at S.No. 175 relating to the 1st plaintiff a person by name Venkayya Chattu S/o Tirupathiah is shown to be living in the same house bearing D. No. 14-2-33 (A). The evidence on record does not disclose who he is, and what is his relationship with either the deceased or the 1st plaintiff is, and why he was living in the same roof with the deceased and the 1st plaintiff. P.Ws. 2, 9, 10, 12, 13 and 14 also did not state the number of persons that were living in the house of P.W. 2 with the 1st plaintiff. In Malkayya v. Avati Bhommayya 1971 (1) An.WR 143 at 147, Chinnappa Reddy, J., while considering the evidentiary value of entries in voters’ list, showing a man and woman living in the same house as husband and wife, observed
In my opinion this entry affords evidence of the fact that Abbu and Buchamma live in . the same house but it is evidence of feeble nature to establish that Buchamma was the wife of Abbu.

In Kiratan Sahu (supra) relied on by the learned Counsel for the plaintiffs it is held that electoral roll prepared under the Representation of People Act is a public document and hence is admissible in evidence as such without calling any body to prove it. So, Ex. A4 can be taken into consideration without any further proof. Kabul Singh case (supra) relied on by the learned Counsel for the plaintiffs is of no help in this case because the ratio in that decision is that a person whose name is found in the voters list, has a right to exercise his franchise and that the entry showing the name of a person as a voter in the voters list is not open to challenge either before the civil Court or before the Tribunal considering the validity of election,

33. P.W. 9 a resident of 1st line in Kothuruvari Thota, P.W. 10 a resident of Gunturuvari Thota, which is near Kothurivari Thota, P.W. 12 an Ex-Municipal Councilor of the next ward where the 1st plaintiff is residing in the house of P.W. 3 and P.W. 14 whose brother used to reside in a portion of the house of P.W. 2, have stated that they have seen the deceased and the 1st plaintiff living together in the house of PW. 2. The evidence of PW. 8, the erstwhile manager of the Central Cafe, shows that he was sending provisions etc., to the 1st plaintiff also. The evidence of P.Ws. 11 and 14 the Manager and Sub-Manager of the Corporation Bank show that the deceased deposited monies in the names of plaintiffs. Exs.A38 and A39 pass books show that the deceased deposited monies in the names of plaintiffs 2 and 3.

34. Exs. A11 to A13 are the letters said to have been written to the 1st plaintiff by the daughter and grand daughters of P.W. 3. They are of the years 1979, 1980 and 1978 respectively. The address in Ex. A11 is “Gurajala Savitri Devi, C/o Gurajala Sambasiva Rao Gunturuvari Tota, Neti Subbamma Meda, Guntur”. The address in Ex. A12 is “G. Sambasiva Rao garu, Potturivari Tota, 2nd Line, Kothapeta, Guntur”. The address in Ex.A13 is “Srimati Gurajala Savitri Devi, C/o Sri G. Sambasiva Rao Garu, Neti Subbamma Meda, Gunturuvari Tota, Brodipet, Guntur. Exs. A11 to A13 cannot be said to have been proved because the authors of those letters are not examined. It is well known that a document is to be proved by examining its author, if he is alive. If he is not alive, somebody who is acquainted with his handwriting has to be examined, to prove that it is in his handwriting. Since none of the authors of Exs. A11 to A13 are examined, they need not be taken into consideration.

35. Ex. A. 40, the original application dated 2-7-1977 submitted to the Corporation Bank to open a KCC account with Rs. 5,000/ – in the name of Gurijala Savithri, C/o G, Sambasivarao, Central Cafe, (G T Road) Guntur, contains the signature of the 1st plaintiff, and does not contain the signature of the deceased. Ex. A41 is the application to open a CD account with Rs. 250/- in the name of Gurijala Ramesh (3rd plaintiff) by mother and guardian Smt. G. Savithri, Gunturuvari Thota, Guntur, is signed by the 1st plaintiff as mother and guardian of the 3rd plaintiff. It also does not contain the signature of the deceased. Ex. A42 is the application for opening a CD account with Rs. 200/- dated 19-6-1975 in the name of Gurijala Vidya Rani (2nd plaintiff) by mother and guardian G. Savithri, Gunturuvari Thota, 2nd line Guntur and is signed by the 1st plaintiff as mother and guardian of the 2nd plaintiff and contains the signature of the deceased as introducer. The date of birth of minor therein mentioned as 12-3-1975. There is an overwriting in the month and the earlier month mentioned therein seems to have been altered as ‘3’. Ex. A43 is the application for opening a SB account No. 444 with Rs. 100/- originally intended to be opened in the name of G. Savithri, Vidya Rani, M/G Mother. But those words are found struck off and the name and address are shown as Gurijala Savithri W/o G. Sambasivarao Gunturuvari Thota, 2nd line, Guntur. The date of birth of the minor was mentioned as 12-8-1972 but is struck off. It contains the signature of the 1st plaintiff. The words M/G “G. Vidya Rani, are struck off. It is also contains the signature of the deceased as introducer. Had the plaintiffs produced the passbook in respect of the said SB Account No. 444, it would have revealed whether the account is standing in the name of G. Vidya Rani, by mother and guardian – mother, or if it is actually standing in the name of the 1st plaintiff. Since the original passbook is not produced and since Ex. A43 contains some unattested strikings or alterations, I do not wish to place any reliance on Ex. A43. Even if Ex. A43 is to be taken into consideration, it only shows that on 19-6-1975 the deceased introduced the 1st plaintiff as his wife, for opening a Savings Bank account in the Corporation Bank.

36. Ex. A44 is an application for opening a KCC account for Rs. 3,000/- dated 23-8-1979 in the name of G. Savithri W/o G. Sambasivarao, 2nd line Gunturuvari Thota, Guntur. It does not contain the signature of the deceased, but contains the signature of the 1st plaintiff.

37. Ex. A45 is another application for opening KCC account for Rs. 2,000/- in the name of G. Savithri, Gunturuvari Thota, Guntur. It does not contain the signature of the deceased, but contains the signature of the 1st plaintiff.

38. Ex. A46 is the application submitted to Saint Joseph’s High School for girls on 12-6-1988 while admitting the 2nd plaintiff into the school, showing her date of birth as 12-8-1972 and her parent as G. Sambasivarao, Hotel owner, Guntur, Puthurivari Thota. It shows that her admission was sought into 1st class, Telugu medium.

39. Ex. A9, pupil’s progress sheet said to be relating to 2nd plaintiff, shows that her medium of instruction as English. When Ex. A46 application is for admission into Telugu medium, how 2nd plaintiff studied in English medium is not explained. The name originally mentioned as ‘ Vidya Rani. D’ in Ex. A9 is tampered with. Ex. A10 progress report relates to Aparna, said to be earlier name of the 2nd plaintiff. Ex. A14 is the pupil’s progress-sheet for the year 1979-80 relates to Vidyarani G. of 2nd class English medium. As stated earlier, when the 2nd plaintiffs admission was sought in Telugu medium, when 2nd plaintiff was shifted to English medium is not explained.

40. According to the evidence of PW2, 1st plaintiff, after the death of the deceased, removed her Tali at Vijayawada. Why PW1 had to go to Vijayawada for removal of Tali is not known. PW1 admitted, and the plaint case also is, that after his death photo of the deceased was published in papers with the names of the members of his family and that the names of plaintiffs did not appear in that publication. She also admitted that she did not make any paper publication in connection with the death of the deceased. If 2nd defendant and 1st plaintiff were moving closely and had ‘reconciled’ as alleged in the plaint there could be no reason for their omitting to mention the names of plaintiffs in the paper publication made by them mourning the death of the deceased. So it is clear that the affair between the deceased and 1st plaintiff was kept a secret by the deceased. Similarly if PW1 attended the marriage of the 3rd defendant, which admittedly was performed in a grand scale by the deceased, she (PW1) could have been found at least in one of the photographs taken on that occasion. She admitted mat she would not be found in any of the photographs taken on that occasion.

41. Though the evidence of PW1 is otherwise, PW. 2 stated:

1st plaintiff delivered both the son and daughter in Padmavathi Hospital” and

Annaprasana and Barasala were performed for plaintiffs 2 and 3

Probably, because the society will not ordinarily appreciate letting out house to unmarried young couple, and since a man and woman, who have illicit intimacy, when they wish to live together in a house belonging to another as tenants, will claim that they are husband and wife, and since there is no reliable documentary evidence on record prior to 1973 to show that there is any sort of relationship between the deceased and the 1st plaintiff, it can safely be taken that the deceased developed illicit intimacy with the 1st plaintiff somewhere around 1973 and kept her in the house of PW2 and so the status of P.W. 1 cannot be better than that of a concubine of the deceased from about 1973.

42. The deceased, after he started living with PW1 in the house of PW2, might have revealed his life story and about his staying at Tenali and doing small time business and later shifting to Guntur with the members of his family from Tenali. In fact, PW1 admitted that the deceased was ‘telling me the details of the properties owned by his family’. Having known the back ground of the deceased and his family, plaintiffs, with the help and connivance of PW3, must have created the story of her being brought up in her (PW3’s) house and their (PW3 and her husband) performing her marriage in their house at Gudivada in 1949, forgetting to take the precaution of trying to find out when exactly PW3 acquired the house at Gudivada.

43. No doubt in the cases relied on by the learned Counsel for the plaintiffs to which I would make a reference in the next paragraph it is held that by virtue of long living together of a man and woman, a presumption of marriage between them can be drawn. Since the deceased died in 1980 and since the relationship between the 1st plaintiff and the deceased is found to have started in or around 1973, it is not a relationship extending over decades, as is the case in the decisions relied on by the learned Counsel for the plaintiffs.

44. The facts in Nirmala case (supra), show that the couple lived together for nearly 30 years. The allegations in the plaint, in that case, show that Narayanarao Subhanji Mugalikar married the first plaintiff (in that case) in or about 1942 and begot the 2nd plaintiff and became prosperous as carpenter and thereafter as a timber merchant with some partners, and then came into contact with the 1st defendant (in that case) by the end of 1948 or the beginning of 1949 and developed illicit intimacy with her and became infatuated with her and became her slave and that 1st defendant used to visit his house often, on different pretexts, and thereafter started living in his house and so Narayana Rao drove out the 1st plaintiff from his house and thereafter 1st defendant begot defendants 2 to 7 and started styling herself as the wife of Narayana Rao, who died intestate on 21-12-1978. The case of the defendants (in that case) is that 1st plaintiff left the house of Narayana Rao after picking up a quarrel with him and so Narayana Rao had no alternative except to marry the 1st defendant, and that his second marriage with the 1st defendant took place in or about 1948 with requisite ceremonies. From the fact of that case it is clear that, the case of both the parties i.e., 1st plaintiff who is the first wife and 1st defendant who claims herself to be the second wife of Narayana Rao, is that both their marriages took place in or before 1948, and the admitted case of the plaintiffs therein is that 1st defendant was living with Narayana Rao from 1948, when there was no restriction on the number of wives a Hindu can have.

45. The facts in S.P.S. Balasubramanyam’s cases (supra) show that both those cases arose out of the same suit. They show that one Chinnathambi, having married Pavayee, developed intimacy with another woman by the same name i.e. Pavayee No. 2 and lived with her like husband and wife from 1920 for a number of years and begot children through her. In 1920 bigamy was not an offence and a Hindu could legally have more than one wife.

46. A careful reading of Ranganath Parmeshwar Panditrao Mali case (supra) shows that it is a case of an unmarried man living with a woman for a long time. Question if a man, who was already married, starts living with another woman for a long time, a presumption that there was a valid marriage between him and the second woman can be drawn or not, is not considered in that case.

47. Badri Prasad case (supra) relied on by the learned Counsel for the plaintiffs, being a short order, dismissing a special leave petition, does not contain the full facts. In that case it is held that the presumption of a valid marriage between a man and woman, who were living together for 50 years, did not stand rebutted due to non-production of evidence relating to ceremonial process of marriage being undergone by them, by examining the priest and other witnesses. So, it is clear that in that case couple were living together for 50 years even prior to 1978 i.e. from 1928, when a Hindu can legally marry more than one wife.

48. In Dalavayi Nagarajamma case (supra) it is held that presumption of the 2nd marriage, by reason of long cohabitation, cannot be drawn in the case of a married man. The facts in that case show that a married man started living with another woman from 1935 onwards. The learned Judge, while referring to a decision of the apex Court in Gokul Chand v. Parwin Kumari AIR 1952 SC 231 at 233, that presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption the Court cannot ignore them, and by relying on an earlier unreported decision of the Madras High Court rendered in SA No. 592 of 1921 dated 18-1-1924, held that when a person is already married no presumption of a second marriage with another woman, with whom he starts living, would arise. But that view taken by the learned Judge should be deemed to have been impliedly overruled by the apex Court, in view of the ratio in Badari Prasad case (supra) and S.P.S. Balasubramanyam’s cases (supra) because the facts in those cases show that in spite of the fact that the men in those cases were already married, a presumption of marriage with the second woman, they were living with, was drawn by the apex Court.

49. Since all the above cases relied on by the learned Counsel for the parties arose in respect of relationship between women and married men prior to 1949, those decisions are not relevant for deciding this case because the Act prohibited bigamous marriages among Hindus in the erstwhile State of Madras, of which Guntur and Krishna Districts (where the deceased in fact and is said to have domiciled), were a part, with effect from 29-3-1949. After the advent of the Hindu Marriage Act, 1955, which also prohibits bigamy, the Act stood repealed. By virtue of the provisions of those two enactments any marriage between a person who has a spouse living at the time of the second marriage with another, would be a void marriage, and so it would be non est. When a marriage undergone with all rites and rituals by a person with another, who has a spouse living, is void, how can a married man, in the teeth of the Act and Hindu Marriage Act, 1955, by the mere act of his long living and cohabiting with another woman, elevate her to the status of his ‘wife’ by invoking the fiction in the above decisions relied on by the learned Counsel for the plaintiffs ? Such presumption, if drawn, would be opposed to public policy and gives scope for making Section 10 of Hindu Marriage Act, 1955, nugatory. If the said proposition is to be accepted a concubine of a married man can enjoy the status of a wife, whereas a woman who actually undergoes the ceremony of a marriage with a married man can only have the status of a concubine and not a wife in view of Section 10 of the Hindu Marriage Act, 1955. Therefore, even with the aid of the decisions relied on by the learned Counsel for the plaintiffs, 1st plaintiff cannot be said to be the wife of the deceased.

50. In re the status of 2nd plaintiff vis-a-vis the deceased, the plaint case is that 1st plaintiff and the deceased
were blessed with their first child on 12-8-1972 at 11.15 p.m., in Padmavathi Nursing Home

being run by P.Ws. 4 and 6. Ex. A7, certificate issued by the Guntur Municipality, shows that the birth of the 2nd plaintiff is not registered in its records. Therefore, plaintiffs are relying on Ex. A1 and the other oral and documentary evidence to show that 2nd plaintiff is the daughter of the deceased.

51. The evidence of P.W. 4 (Dr. V. V. Subbarao) is that he and his wife V.S. Padmavathi (P.W. 7) are running Padmavathi Nursing Home at Kothapeta in Guntur and that he gave Ex. A1 certificate to P.W. 1 and that Sambasiva Rao, claiming to be the husband of the 1st plaintiff, brought and admitted her in their nursing home and that in Ex. A4 certificate, issued by his wife to the 1st plaintiff, his wife wrongly mentioned the date as 10-11-1972 for 10-11-1971. During cross-examination he admitted that they maintain registers of birth, and the Municipality supplies the forms in duplicate for that purpose and that the Health Inspector collects the duplicate receipts from his nursing home, leaving the originals in the nursing home, and the birth mentioned in Ex. A1 was also noted in the register of births maintained by them and that the original record, retained in the nursing home, must be available in the nursing home and so apart from Ex. A1, birth register would disclose the delivery of a child by PW1 through caesarian Section and unless he verifies the record he cannot say whether the consent of 1st plaintiff or her husband was obtained for the said operation and that he gave Ex. A1 certificate on the basis of the birth report.

52. Since the evidence of P.W. 4 is that Ex. A1 was prepared on the basis of the original birth report available in his nursing home, birth report is the primary evidence and Ex. A1 is but secondary evidence. In view of Section 64 of Evidence Act, since steps for production of the original birth report are not taken by the plaintiffs, and since Ex. A1 does not fall within any of the exceptions given by Section 65 of the Evidence Act, the evidence of PW4 and Ex. A1 relating to the birth of the 2nd plaintiff, cannot be taken into consideration.

53. Since the evidence of PW4 does not also disclose that he had acquaintance with the deceased and since P.W. 4 did not swear to the fact that ‘Sambasiva Rao’ mentioned in Ex. A1 is the deceased, merely because P.W. 1 went to the hospital with a person known as Sambasivarao, it cannot be said that Sambasivarao mentioned in Ex. A1 is the deceased.

54. The case sheet relating to the 1st plaintiff maintained in the nursing home of PW4, at the time of delivery of 2nd plaintiff, would have disclosed many details like husband’s name, date of admission and as to who gave consent for the operation etc. But, for the reason best known to them, plaintiffs did not take out summon for production of the said case sheet or the original birth report of the 2nd plaintiff. So necessary adverse inference has to be drawn against the plaintiffs, and hence it can be presumed that they were not summoned because they would not corroborate the evidence of P.W. 1.

55. P.W. 7, wife of P.W. 4, is examined to prove Ex. A4 certificate reading :

This is to certify that Gurijala Savithri w/o Gurijala Sambasivarao had D&C operation in my “nursing home on 11-10-1972 for sterility.

Her evidence is that she issued Ex. A4, and that the year 1972 mentioned therein is a mistake for 1971. During cross-examination she stated that she gave the date of operation in Ex. A4 as per the information furnished by P.W. 1 and in view of Ex. A8 certificate showing that P.W. 1 delivered a female child on 12-8-1972, she is stating that the year 1972 mentioned in Ex. A4 is a mistake for 1971, and that she is not aware that her husband (PW4) issued Ex.A8 certificate, and that she
mentioned in the Ex. A4 and in Ex. A1 as Gurizala Savitri w/o Sambasiva Rao, as stated by them.

Ex. A1 and Ex. A4 are dated 3-8-1980 and 15-9-1980 respectively. Since the deceased died on 3-6-1980, it is clear that Exs. Al and A4 were taken after the death of the deceased and so the deceased could not have accompanied P.W. 1 for obtaining Exs. A1 and A4. So “as stated by them” mentioned by P.W. 7, does not and cannot refer to the deceased. It is not known who accompanied PW1 for obtaining Exs. A1 and A4 from PW7. Since the evidence of PW7 does not disclose that she had previous acquaintance with the deceased, and as she also did not state that Sambasiva Rao mentioned in Ex. A4 is the deceased, merely because the name of Sambasivarao is mentioned in Ex. A4 as the husband of 1st plaintiff, it cannot be said that that name relates to the deceased. That apart, since the evidence of PW7 is that she issued Ex. A4 certificate on the strength of the statement made by P.W. 1, and went on to say that the year 1972 in Ex. A4 must be a mistake for 1971 in view of Ex. A8, which is but a Xerox copy of Ex. A1, and since she stated that there is no record relating to the operation performed by her on the 1st plaintiff, it is clear that she is only trying to help the plaintiffs by issuing those certificates, blindly believing the statement made by PW1. Neither Ex. A8, which is the Photostat copy of Ex. A1, nor Ex. A4 have evidentiary value because they are but secondary evidence, given by PW7 merely on the basis of the statement said to have been made to her by P.W.l, and were not given either from the personal knowledge of P.W. 4 or P.W. 7, nor are prepared from any file or register maintained by them in their nursing home.

56. The earliest document containing the date of birth of the 2nd plaintiff is Ex. A42. It contains the signatures of both the deceased and 1st plaintiff and is dated 19-6-1975 wherein her date of birth is mentioned as 12-3-1975. Why that date 12-3-1975 is given, when the 2nd plaintiff is said to have been born on 12-8-1972, is not explained by PW1 by recalling herself. Since no extract from the birth register maintained by the Municipality showing the date of birth of the 2nd plaintiff is produced, and since the discrepant date of birth mentioned in Ex. A42 is not explained, Ex. A1, A4 and A8 and the evidence of P.Ws. 4 and 7 cannot be believed.

57. Since the earliest document shows that the deceased and the 1st plaintiff came into contact only in or around 1973 and since the plaint case is that 2nd plaintiff was born on 12-8-1972, the possibility of 2nd plaintiff being sired by the deceased is very remote.

58. Ex. A35 is said to be the report sheet of Vidya Rani (2nd plaintiff) for the year 1976-77. It shows that she was a student of UKG ‘B’ Section and was promoted to I Class. Ex.B36 shows that Vidya Rani studied UKG in ‘A’ Section during the academic year of 1977-78 and was promoted to 1st Class. Why the 2nd plaintiff had to study UKG for two years i.e., 1976-77 and in 1977-78 also, when the report sheet for the year 1976-77 (Ex.A35) shows that she was promoted to the 1st Class is not stated or explained by PW1 or any other witness examined by the plaintiffs. In Ex.A9, from the name ‘Vidyarani.D’ written on the 1st page and on the right hand top portion of the 3rd page the letter ‘D’ was struck off and ‘Gurajald1 is written with a different ink on the first page, and the letter ‘G’ is over written on the letter ‘D’ on the right hand top portion at Page 4 of the Ex. A9. So it is difficult to believe that Ex.A9 in fact relates to the 2nd plaintiff.

The evidence of P.W. 1 in cross-examination is;

I named my daughter as Aparna as per the instructions of Sidhanthi. In the third month of the female child, she was named as Aparna on the prior consultation of Siddanthi…. There is no barasala for my daughter.

The evidence of P.W. 2 is
Annaprasna and Barasala were performed to P2 and P3 (plaintiffs 2 and 3). Pi’s (1st plaintiffs) relatives came for those functions

P.W. 3 also stated that there was no ‘Barasala’ for the 2nd plaintiff and that the ‘daughter of P.W. 1 was named ‘Vidya Rani’. If 2nd plaintiff was really born to the deceased, question of 1st plaintiff herself giving a name to 2nd plaintiff as ‘Aparna’, without the knowledge and consent of the deceased does not arise, because judicial notice can be taken of the fact that among Hindus, generally, the father, either after consultation with the mother of the child and Ors. or all by himself overruling others, would name the child. Obviously because the deceased and 1st plaintiff were not living together, or had not met, by the time P.W. 1 either conceived or gave birth to 2nd plaintiff, he did not name the 2nd plaintiff and it is the 1st plaintiff that must have named the 2nd plaintiff as ‘Aparna’, Probably after coming into contact with the 1st plaintiff, the deceased might have asked her to change the name of the 2nd plaintiff as Vidya Rani, Ex.A10 report sheet said to be relating to the 2nd plaintiff, the name is mentioned as ‘Aparna’. So it is clear that till 1975, 2nd plaintiff was known as ‘Aparna’ only. Since the name of 2nd plaintiff must have been changed in or after 1975 as ‘Vidya Rani\ it is clear that for about three years she was known only as ‘Aparna’. If the deceased really was the father of the 2nd plaintiff, since the evidence of PW1 is that as the deceased did not like the name ‘Aparna’ he changed it to ‘ Vidya Rani’, it is clear that the deceased must have started taking interest in the welfare of plaintiffs 1 and 2 only from 1975 and must have changed the name of 2nd plaintiff.

59. Question of 1st plaintiff undergoing D&C operation either in 1971 or 1972 also does not arise, because, as stated earlier, the pink card in Ex.A52 shows that 2nd plaintiff is the 2nd child of the 1st plaintiff, and that her 1st child died.

60. The evidence given by PW5, the Head Mistress of Saint Joseph’s School, P.W. 11 the Manager of Corporation Bank and P.W. 4 the Sub-Manager of the said bank, is not much of help in deciding the paternity of the 2nd plaintiff because they cannot have knowledge as to who actually is the father of the 2nd plaintiff. Since the deceased admittedly has a daughter i.e., 3rd defendant through the 2nd defendant, he cannot adopt the 2nd plaintiff as his daughter. By the act of admitting 2nd plaintiff in school and by making deposits in her name styling himself as the father, the deceased would not become the father of 2nd plaintiff, when he is not her real or adoptive father, by ‘acknowledgment’ which is not recognized by Hindu Law.

61. In re the paternity of the 3rd plaintiff, since Ex.A29 voters list which was prepared for the elections of the year 1977 shows that PW1 and the deceased were living under the same roof prior to 1977 and since the deceased was held to be taking keen interest in plaintiffs 1 and 2 from 1975 and since Ex.A2, extract from the birth register, shows that 3rd plaintiff was born to the 1st plaintiff and the deceased, and since the deceased made deposits in the name of 3rd plaintiff and since defendants also admitted that the deceased was having an affair with the 1st plaintiff from 7 or 8 years prior to his death and since Ex. A52 shows that the deceased gave his willingness for the 1st plaintiff undergoing operation on 9-5-1976 when she delivered the 3rd plaintiff, it can be presumed that 3rd plaintiff is the son of the deceased.

62. Hence, I hold that there was no marriage between the deceased and 1st plaintiff and that she is not the wife of the deceased and was his concubine and that 2nd plaintiff is not the daughter of the deceased and that the 3rd plaintiff is the illegitimate son of the deceased. The point is answered accordingly.

Point No. II:

63. The specific case of the plaintiffs, in the plaint, and as per the evidence adduced by them also, is that all the plaint schedule properties are the joint family properties of themselves, the deceased and the 1st defendant. Since I held that 1st plaintiff is not the wife and that 2nd plaintiff is not the daughter of the deceased, they cannot have a share either in the joint family or self-acquired properties of the deceased. Though he is an illegitimate son of the deceased, 3rd plaintiff is entitled to a share in the self acquired properties of the deceased only, as per the decisions relied on by the learned Counsel for the plaintiffs i.e., Rameshwari Devi v. State of Bihar and Ors. , Smt. Parayankandial Eravath Kanapravan Kalliani and Ors. v. K. Devi and Ors. , G. Nirmalamma and Ors. v. G. Seethapathi and Ors. .

64. Since plaintiffs contended that all the plaint schedule properties were acquired with the income derived from the hotel business, carried on by the deceased and the 1st defendant, and that the sale deeds in respect of some of the properties acquired by them were obtained benami in the name of the other defendants 2 and 7, burden of proof to establish that fact is on them. The contention of the learned Counsel for the plaintiffs is that since both sides adduced evidence burden of proof pales into insignificance.

65. Ex. B26 shows that 7th defendant purchased items 1 and 2 of the plaint schedule on 6-8-1966 for Rs. 55,000/- The contention of the learned Counsel for the plaintiffs is that the sale proceeds of the house at Tenali, under Ex.B2 agreement of sale dated 10-6-1965, must have been used for purchasing items 1 and 2 of the plaint schedule because there is no reliable evidence on record to show that defendants 2 and 7 were gifted Rs. 15,000/- each at the time of their marriages. It is also his contention that items 3, 4 and 6 i.e., wetlands purchased in the name of 2nd defendant, item Nos. 7 and 8 purchased in the name of the 4th defendant (husband of the sister of the 1st defendant and the deceased), and houses shown in item Nos. 9 and 10 of the plaint schedule purchased under Ex. B15 dated 11-12-1967 for Rs. 50,000/- and Ex. B16 dated 27-7-1967 for Rs. 40,000/- standing in the name of defendants 2 and 7, were all purchased from the income from the hotel business and the sale deeds were, obtained benami in their names, and the trial Court, without considering the answer elicited during the cross-examination of D.Ws and without keeping in view the fact that 5th defendant (son of the 4th defendant) as D.W. 10, admitted that the property shown as item No. 12, purchased in the name of 4th defendant under Ex. B33 dated 2-7-1974 for Rs. 9,500/-, was conveyed to defendants 1 and 3 after the filing of the suit and that there is no evidence to show that the sale consideration of Rs. 85,000/- was in fact paid to him, erroneously did not accept the benami nature of the transactions. Relying on the answers given by D.Ws. 1, 2, 9 and 10 during cross-examination he contended that inasmuch as the deceased and the 1st defendant, prior to their starting of the hotel business at Guntur had no income yielding ancestral property except a tiled house and since the deceased and 1st defendant sold away the land belonging to them and since the parents of defendants 2 and 7 have no property worth mentioning, to gift any money, much less Rs. 15,000/- to them at the time of their marriages, and since the deceased and the 1st defendant were earning huge income from the hotel business by running ‘Central Cafe at Guntur, it is easy to see that all the plaint schedule properties were purchased by the deceased and the 1st defendant in the names of D2 to D7 benami for their benefit for the purpose of avoiding income tax.

66. Since plaintiffs are claiming that items 1 to 10 and 12 of the plaint schedule were purchased benami in the name of defendants 2 to 7 and are claiming partition of those properties on the ground that the real owners of those properties are the deceased and 1st defendant, it is for them to establish that fact because they, like plaintiffs in a suit for declaration of title, have either to stand or fall on the strength of the evidence adduced by them but cannot, by relying on the weakness of the case of defendants, claim a relief.

67. The evidence adduced by the defendants shows that parents of defendants 2 and 7 presented cash at the time of their marriages and that they used to lend that money and had carried on milk business and purchased the properties in their names. The evidence of D.W. 10 (5th defendant) shows that he earned money by carrying on business and later became partner of 1st defendant and the deceased and acquired item No. 12 of the plaint schedule and let it out for the business of 1st defendant and the deceased.

68. The deceased and the 1st defendant, admittedly, were being assessed to income tax. The contention that the deceased and the 1st defendant were making more money than that was being disclosed by them in the income tax returns, and utilized that undisclosed money for acquiring item Nos.l to 10 and 12 of the plaint schedule cannot be accepted merely on the basis of the ipsi dixit of P.W. 1 and/or of P.W. 8 the former Manager of Central Cafe, because the deceased came into contact with the 1st plaintiff somewhere in or around 1973 and since the evidence of PW8 shows that he worked as the Manager of Central Cafe from April 1973 to March 1980 and for about 6 months as Manager of Central Cafe, Sambasiva pet, during 1968 and since Exs.B28, B15, B16 and B24 are of the years 1966, 1967 and 1970 respectively. So neither 1st plaintiff nor P.W. 8 can have knowledge of the earnings etc of the deceased during those years. The reason for the deceased and the 1st defendant acquiring properties benami for their benefit in the names of others during that period is not stated by the plaintiffs. PW. 8 admitted that he was not maintaining the accounts of the Hotel Central Cafe and that there is no documentary evidence to show that the lodging Section was fetching an income of Rs. 12,000/- and the income from the entire hotel was Rs. 20,000/-. Thus there is no prima facie evidence to show that the deceased and 1st plaintiff were earning more income than that was disclosed in the income tax returns.

69. Ex.B9 partnership deed dated 17-7-1969 shows that besides the deceased and 1st defendant, Subba Rao (9th defendant) son of 4th defendant, was also a partner in the business being carried on by them. Ex. B11 is income tax assessment order for the account year ending 31-3-1972, It also shows that the deceased and 1st defendant and 9th defendant are its partners. Ex.B38 income tax assessment order for the year ending 31-3-1974 in respect of Central Cafe lodging, shows that the profits were divided among its partners. 5th defendant was taken as a partner as per Ex. B10 dated 15-9-1972. That partnership was dissolved on 12-7-1977 under Ex.B13. So it would not be possible for the deceased and 1st defendant to acquire any properties benami, in the name of others, either for their benefit or for the benefit of their joint family, because they are answerable to the other partner(s). At the time of dissolution of the partnership they would have claimed a share in the properties, if any, acquired as benami transactions from the income derived from the partnership business. Since the deceased and the 1st defendant could not have been aware of the existence of the 1st plaintiff by the date of acquisition of items 1 to 10 and 12 of the plaint schedule, there could be no motive or reason for acquiring those properties as benami transactions, to defeat their rights as contested by them.

70. Valliammal v. Subramaniam , is a case where the husband claimed that he acquired the properties for his benefit, benami in the name of his wife. The apex Court while observing as follows in Para 13 of its judgment
This Court in a number of judgments has held that it is well-established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.

held that as title to the property vests in the person in whose favour the sale deed has been executed, the vendee would be the absolute owner of the property, and that that presumption, in favour of the vendee, could be disbelieved only if her husband was able to prove that there were circumstances which warranted the purchase of the property benami in the name of his wife.

71. Merely because 2nd defendant as D.W. 9 is unable to state the amount of house tax paid by her for her house, and merely because she stated that her husband looks after all the matters on her behalf, it cannot be said that the purchase of that house by defendants 2 and 7 is a benami transaction, because usually it is the husband that would look after the affairs of the wife in respect of her property. Though they advanced the money for purchase of properties, ladies (in those days) were, usually, not looking after the management of the properties purchased by them either by themselves or through others on their behalf, and they normally used to take the assistance of their husbands for managing the properties.

72. Since circumstances that warranted purchase of items 1 to 10 and 12 of the plaint schedule, in the names of defendants 2 to 7 by the deceased and 1st defendant are not brought out by the evidence adduced by the plaintiffs their theory of purchase of items 1 to 10 and 12 of the plaint schedule as benami transactions by the deceased and 1st defendant cannot be accepted.

73. Since the facts in Takkali Appalanaidu (died) by LRs. v. Adari Satyanarayana and Ors. and K.V. Narayana Swami Iyer v. K.V. Ramakrishna Iyer AIR 1965 SC 289, relied on by the learned Counsel for the plaintiffs are different from the facts in this case, those decisions have no application to the facts of this case.

74. Hence, I hold that only item No. l 1 of the plaint schedule is the joint family property of the deceased and the 1st defendant, and that the deceased was not having any share in item Nos.l to 10 and 12 of the plaint schedule and in case of intestate succession only 3rd plaintiff will have a share in the half share of the deceased in item No. l 1 along with his wife, daughter and mother. The point is answered accordingly.

Point No. 3 and Cross-Objections :

75. The evidence of D.W. 4 is that he is the family doctor of the deceased and that about VA or 2 months prior to his death, the deceased executed Ex. B28 Will and that after the scribe read over the contents of the Will, written as per the instructions of the deceased, the deceased affixed his signature thereto in his presence and that he and the other attestor attested the Will in the presence of the deceased and thereafter the scribe also affixed his signature to the Will i.e., Ex. B28. During cross-examination he stated that he attested the Will Ex. B28 in his capacity of a friend but not in his capacity as the doctor of the deceased and that Ex. B28 is the only document attested by him till then and that it was written in the house of the deceased and that he does not remember the date of Ex. B28, which was executed in May 1980, and knows the date of the death of the deceased and that he was called by the 1st defendant from his house, which is about 2 furlongs from the house of the deceased, and that by the time he went to the house of the deceased, the other attestor and the scribe were present and that no draft was prepared and that the scribe prepared the Will as per the instructions of the deceased and that he, the deceased and the other attestor were friends from 1973 onwards, and that he does not know whether the scribe is a professional document writer or not and that the spacing in between the lines in the 1st para is narrower than the spacing in the later part of the Will and denied the suggestion that Ex. B28 is brought into existence after the death of the deceased.

76. The evidence of D.W. 5, the owner of the ginning mill, is that he knew the deceased from about 15 years prior to his death and that he attested the Will executed by the deceased after it was written by the scribe as per the instructions of the deceased, and that he and the other attestor had seen the deceased signing the Will and that the deceased saw him and the other attestor signing the Will. During cross-examination he stated that he had no money dealings with the deceased and as a patron of the hotel being run by the deceased he came into contact with him and that he can identify the signature of the deceased only if it is found beside his signature and does not know the educational qualifications of the deceased and that he went to the Government Hospital after coming to know that the deceased was admitted therein with stab injuries and that uptil then he attested only the Will executed by the deceased but no other Will and as the deceased telephoned to him he went and attested the Will in the lodging of the Central Cafe” in the office room of the deceased in the 1st floor, and that the deceased, 1st defendant and the scribe were there at that time and that he does not remember how much time it took for completion of the Will and that he attested Ex. B28 in May 1980, and denied the suggestion that Ex. B28 is forged subsequent to the death of the deceased.

77. D.W. 6 is the scribe of Ex. B28 and is a professional document writer. His evidence is that he usually scribes the documents of the deceased and that he scribed the Will of the deceased in May 1980 and that D.Ws. 4 and 5 were present at that time, and that after completion of the writing of the Will, he read it over to the deceased and thereafter the deceased affixed his signature thereto and after the attestors attested it he affixed his signature thereto as its scribe, and that he had acquaintance with the deceased from about 20 years prior to his death. During cross-examination he stated that he, as a licensed document writer, maintains registers which contain the details only of the registered document scribed by him, and that he issues receipts for the payments made to him by retaining the counterfoils thereof with him, and that he did not prepare any draft for Ex. B28 and that there was no talk regarding the registration of Ex. B28 at that time, and that he was not paid anything for his scribing Ex. B28, and that he scribed two sale deeds executed by Kishore Babu, nephew of the 1st defendant, in favour of defendants 1 and 7 and Ors. about one year after Ex. B28 and that 1st defendant knew that as per Ex.A28 he had to implead himself as a party to the pending litigation on behalf of the deceased and that he cannot identify the signature of the deceased in the document not scribed by him, and denied the suggestion that Ex. B28 is forged.

78. The contention of the learned Counsel for the defendants is that as an attempt was made on the life of the deceased on an earlier occasion, and as the deceased was not keeping good health, he might have been apprehensive, and so he must have executed the Will, and since Exs.B39 to B42 show that 1st defendant made an attempt to bring himself on record by sending Ex. B28 to the advocate at New Delhi, and as Ex.B39 shows that Badarinath Sarma, Advocate at New Delhi, due to his lack of knowledge in Telugu (as Ex. B28 is in Telugu) had himself taken a decision to file a petition to bring on record defendants 2 and 3, but not the 1st defendant, as the legal representatives of the deceased in the litigation pending in the Supreme Court, and since bequeathing properties to wife is not an unnatural disposition, the finding of the trial Court on the genuineness of Ex. B28 is erroneous.

79. The main contention of the learned Counsel for the plaintiffs is that since the deceased who was hale and hearty and was aged only 49 years at the time of his homicidal death, he, in the normal course of human conduct, would not have thought of executing a Will at that age and in any event since the deceased was treating the plaintiffs with love and affection and was depositing money in bank in their names, his not providing any thing, and completely disinheriting them by the Will, and its non-registration by him, are strong suspicious circumstances, which are not properly explained by the defendants and since 1st defendant did not get himself impleaded in the pending litigation as per Ex. B28 it is easy to infer that Ex. B28 was brought into existence for the purpose of this suit and so the trial Court rightly disbelieved it.

80. The reasoning given by me in Para 34 supra, for not taking into consideration Exs. A1l to A13, holds good for not taking into consideration Ex.B39 also, as Badarinath Sarma, who is its author, is not examined as a witness. In my considered opinion, 1st defendant failing to act as per the instructions in Ex. B28, per se, is not a ground to disbelieve or reject it, if, from other evidence on record, it can be held to have been duly executed by the deceased.

81. From the cross-examination of D.Ws. 4 to 6, it is not known whether plaintiffs are disputing or admitting the signature of the deceased in Ex. B28. A close and careful look at Ex. B28 shows that the ink used for writing the contents thereof and the ink used for making the signature, said to be that of the deceased, is the same. A close and careful comparison of the signature (said to be that of the deceased) in Ex. B28, with the signatures of the deceased in the documents being relied on by the plaintiffs, especially in Exs.A6, A43 and A46 shows that all those signatures were made by the same hand. The peculiar habit of combining the letters ‘ ‘ and ‘ ‘ in “Girajala” and writing the ‘ ‘ in ‘ ‘ in one stroke is the same in Exs. A46 and B. 28. Similarly, the writing of ‘in the signature in the documents being relied on by the plaintiffs, and the signature (said to be that) of the deceased in Ex. B28 is the same. So it is clear that the signatures (said to be that) of the deceased in the documents being relied on by the plaintiffs, and the signature (said to be that) of the deceased in Ex. B28 seem to have been made by the same hand, and since there can be no scope for the defendants knowing about the existence of the documents containing the signatures (said to be that) of the deceased with the plaintiffs, which are produced by them into Court at the time of trial, question of their bringing into existence Ex. B28 with a signature similar in pictorial appearance and letter pattern etc., as that of the signatures in the documents relied on by the plaintiffs would not be possible, and so it cannot be said that the signature (said to be that) of the deceased found in Ex. B28, is not that of the deceased. Therefore, i hold that the signature as its executant, found in Ex.A28, is that of the deceased. Since the ink used for the signature of the deceased in Ex. B28 and the ink used for writing the body of Ex. B28 is the same, it is difficult to believe that Ex. B28 was brought into existence subsequent to the death of the deceased,

82. The evidence of D.Ws. 4 and 5 clearly establishes the due execution and attestation of Ex. B28 in accordance with Section 63 of the Succession Act. No doubt there is discrepancy in the evidence of D.Ws. 4, 6 and 5 with regard to the place of attestation of Ex. B28, because D.W. 5 stated that he attested it in the Central Cafe, whereas the evidence of D.Ws. 4 and 6 is that it was executed and attested in the house of the deceased. Even if D.W. 4 attested Ex. B28 in the house of the deceased and even if D.W. 5 attested it in the Central Cafe, it is of no consequence, and it amounts a valid attestation because Section 63(c) of the Succession Act reads
C) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

and even if D.Ws. 4 and 5 have attested Ex. B28 at different places, since their evidence shows that the deceased admitted its execution and asked them to attest and that the deceased saw their affixing their signatures as attestors thereto, it is a validly attested document as per Section 63 of the Succession Act. It may be due to the fact that D.Ws. 4 to 6 gave evidence about 6 years after they attested Ex. B28, they might not have remembered where D.W. 5 affixed his signature to Ex. B28 or vice versa.

83. The trial Court seems to have disbelieved Ex. B28 on the ground that D.Ws. 4 and 5 stated that they did not attest any document earlier, and on the assumption that spacing of the sentences in the top portion of Ex. B28 is narrow and the spacing of sentences in the bottom portion of Ex. B28 is wider. D.Ws. 4 and 5 not attesting any document earlier is not a disqualification for their figuring as attestors to Ex. B28 because Succession Act does not prescribe any qualification for the attestors to Wills, and does not lay down that persons who had attested some documents earlier only are eligible to figure as attestors in a Will. There will be a first time, like many things, for attestation also, for every attestor of a document. The spacing of sentences in Ex. B28 does not show that it was brought into existence on a blank paper containing the signature of the deceased. Even by a careful look at Ex. B28 it cannot be said that it was brought into existence on a blank paper containing a signature. In my opinion the spacing of the sentences in the entire body of Ex. B28 is even. Plaintiffs obviously did not want to commit themselves by stating that Ex. B28 was brought into existence on a blank paper containing the signature of the deceased, because it would tantamount to their admitting the signature of the deceased in Ex.B. 28 and so they baldly alleged that it is a forged document.

84. D.W5 stating that he can identify the signature of the deceased. If it is near to his signature cannot be a ground for rejecting his evidence, because DW5 may not be very well acquainted with the signature of the deceased and might not have seen his signature many a time. In fact there can be no scope or necessity for DW5 being acquainted with the signature of the deceased. Though he is his friend, DW5 might have seen the deceased signing, for the first time, only on Ex. B28.

85. The evidence of D.Ws. 4 to 6 that they are friends of the deceased is not denied or disputed during their cross-examination. That D.W6 scribes the documents of the family of the deceased is evident because he is the scribe of the originals of Exs.B15, B16, B24, B25, B26, B33 and B36 and so the deceased calling D.W. 6 to scribe his Will is not a suspicious circumstance. Since Will is not a compulsorily registerable document, the fact that Ex. B28 is not registered is not a suspicious circumstance.

86. The evidence adduced by the defendants shows that there was an earlier attempt on the life of the deceased and that he had chest pain. So he might have thought of executing a Will. Even assuming that there was no life threat and that he did not have chest pain prior to his being stabbed, which resulted in his death, the deceased contemplating to execute and executing a Will about a month prior to his death, by itself, cannot be said to be a suspicious circumstance, since every body should be presumed to know that death is a certainity and its happening cannot be predicted. Some prudent middle aged men may, with a view to make disposition of their property, execute Wills without any reason. Probably, because of his illicit intimacy with the 1st plaintiff, deceased who made some deposits in the names of all the plaintiffs, might have thought it fit to execute Ex. B28 in respect of his property in the presence of his friends D.Ws. 4 to 6, so that plaintiffs may not lay a claim on them after his death.

87. So I hold that Ex. B28 Will is true and genuine. Since the deceased bequeathed his entire property to his wife the 2nd defendant, 3rd plaintiff is not entitled to any share in the properties left behind by the deceased. The point is answered accordingly.

88. In view of my findings on the points for consideration, the plaintiffs are not entitled to any relief and hence the appeal is dismissed and the cross-objections are allowed. In the circumstances, I direct the parties to bear their own costs.