1. The unsuccessful plaintiff in O. S. 15 of 1966 on the file of the Subordinate Judge, Tenali has preferred this appeal. The plaintiff, who is the daughter of one Kantam Raju Seetharamaiah, seeks a declaration that the settlement deed dated 5-8-1957 executed by her father in favour of the 2nd defendant, her step-mother, and the sale deed dated 22-6-1959 in respect of A and A-1 schedule properties are not binding on her in so far as they relate to her 1/3rd and alternatively her 1/4th share therein. She also seeks a decree for partition of plaint 'A' Schedule immovable properties into four equal shares and for partition of plaint 'A' and A-1 immovable properties; and for partition of B, C, & D Schedule properties, which comprise an insurance policy, movable properties and outstandings, and allotment of a 1/3rd and alternatively a 1/4th share in the said properties to her.
2. The plaintiff and defendants 2 and 3 are the daughters of Seetharamaiah by his first wife, Venkayamma. The 1st defendant, who is the second wife, leased out the properties to the 4th defendant. It is the case of the plaintiff that A schedule properties belonged to Seetharamaiah, while A-1, B, C and D schedule properties were acquired by him from the funds which came into his hands from one Kameswaramma for the benefit of the plaintiff and defendants 2 and 3. Kameswaramma was plaintiff's grandmother's sister-in-law. She was widowed early in life. She fostered plaintiff's mother. As the plaintiffs mother died in 1945, Kameswaramma having no one else put her funds in the hands of plaintiffs father for the benefit of the plaintiff and defendants 2 and 3.
3. According to the plaintiff, her father after the death of her mother, married the 1st defendant, who is no other than his own sister's daughter and nearly 20 years younger than himself. It is alleged that the 1st defendant, exercising undue influence over plaintiffs father, made him execute a deed dated 5-8-1957 settling A and A-1 Schedule properties in her favour. It is also alleged that item 2 of A-1 schedule property was purchased from out of the funds placed in the hands of her father by Kameswaramma, but the sale deed in respect of that item (Ex. B-18) was taken in the name of the 1st defendant. That property, in fact, belongs to the plaintiff and defendants 2 and 3. As the plaintiffs father died on 15-2-1962, she claims for a declaration and for partition of the immovable and movable properties as mentioned above.
4. Defendants 2 and 3 remained Ex Parte, while defendants 1 and 4 resisted the suit inter alia denying that Kameswaramma had placed any funds in the hands of the plaintiff's father and that from any of these properties were purchased from such funds for the benefit of the plaintiff and defendants 2 and 3. The existence of some of the items of C. Schedule properties was denied and some of the items therein were claimed to be jewels given to the 1st defendant by her husband at the time of her marriage and, therefore, exclusively belonging to her. It was further pleaded that the settlement deed executed on 5-8-1957 was valid and binding and was not void on any of the grounds stated by the plaintiff. The 1st defendant also averred that plaintiff's father had executed a will on 25-5-1961 (Ex. B-13) in a sound and disposing state of mind and conveyed the properties mentioned therein, which covers all other items of plaint schedule properties.
5. The learned Subordinate Judge held that no funds were entrusted by Kameswaramma to Seetharamaiah for the benefit of his daughters by his first wife, Venkayamma; and A-1 schedule properties were not purchased with any such funds; that the premia for the B Schedule - Insurancy Policy - were not paid from out of any such monies entrusted; and that the plaint C Schedule movables also were not acquired with any such funds. It was also found that the settlement deed was not vitiated on account of undue influence coercion or fraud; the will propounded by the 1st defendant was true and valid. In the result, the lower Court dismissed the plaintiff's suit. However on additional issue No. 1 relating to the settlement deed being properly stamped and registered, the Court below held that it was, in fact, a gift deed and that sufficient stamp duty was not paid. The deficit stamp of Rs. 550/- and the penalty thereon was directed to be collected and the document impounded for that purpose. As against that direction the defendant filed a revision petition - C.R.P. 1916/69, which was allowed by this Court on 19th Oct, 1970.
6. After judgment in C.R.P. 1916 of 1969 which directed the deletion of Cl. (4) of the decree- 'that Ex. B-18 dated 5-8-57 and the same is impounded and the same be sent to the Collector for collection of deficit stamp duty and penalty'- the plaintiff filed this appeal on 27-7-1973 with a petition for condonation of delay which was allowed with out notice of the respondents herein.
7. In this appeal, Mr. A. Hanumantha Rao, learned counsel for the appellant frankly conceded that there was no evidence worth the while to support the plaintiff's plea that Ex. B-18 was executed under undue influence, coercion and fraud. The learned counsel also stated that while he is not giving up the plea that the plaint A-1, B, C and D schedule properties were purchased from out of the funds entrusted by Kameswaramma to Seetharamaiah, there is no sufficient evidence to support that plea. He did not reply upon any particular piece of evidence and did not take the Court through the evidence let in by the parties in this behalf. Having gone through the judgment of the trial Court on issues 1,2,3,6 and 7, I do not see any reason to disagree with those findings. In the above circumstances, the findings thereon are confirmed.
8. Mr. Hanumantha Rao, learned counsel for the appellant, however, contended that Ex. B-18 is not a settlement deed but a gift deed, and the lower Court had not admitted that document in evidence, now that the trial Court has found that the document is not a settlement deed but a gift deed and that it is insufficiently stamped, and also imposed penalty and directed collection of deficit stamp and penalty by impounding the document, that document could not be acted upon by the trial Court for non-suiting the plaintiff.
9. On the other hand, Mr. L.P.R. Vittal, learned counsel for the respondents urged that the lower Court has erred in holding that the document was a gift deed. It is, in fact, a settlement deed. He also argues that the trial Court having admitted that document in evidence and also having acted upon it, could not impose penalty or direct collection of the deficit stamp duty, and that, in any event, having regard to the admission of the plaintiff, in the plaint, that there was a settlement deed which should be declared as not binding on her, the question of proving the settlement deed did not arise. Further title having passed on account of the registration of the settlement deed, the plaintiff cannot be granted a decree. It was also urged that in the face of the order of the High Court in C.R.P. No. 1916 of 1969, it is open to this Court to once again hold that the document is inadmissible in evidence or cannot be acted upon.
10. The registered document, Ex. B-18, dated 5-8-1957 was executed by the plaintiff's father in favour of his second wife, the 1st defendant. Under that document, immovable properties worth Rs. 10,000 under his possession and enjoyment are given to her that day without any consideration. She is given the right to take possession of the said property after his death and enjoy the same absolutely. Where , under a document property is given without any consideration, that may amount to a gift deed as well as a settlement deed. but, where it is given with a view to make provision for a dependent, it falls within the definition of a settlement deed as contained in S. 2(24)(b) of the Indian Stamp Act which reads as follows:
'S. 2 (24) 'Settlement':
Settlement means any non-testamentary disposition, in writing, of moveable or property (whether by way of declaration of trust or otherwise) made-
(a) xx xx xx xx
(b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him'.
The wife of a Hindu is undoubtedly a dependant of her husband. The liability to maintain her during his lifetime and also to make provision for her maintenance thereafter rests upon him. Further, the wife is entitled to claim maintenance from out of the estate of her husband. Evidently having regard to that obligation Seetharamaiah give the property to his second wife. It cannot be forgotten that long prior to the execution of that document, his three daughters by the first wife, including the plaintiff, were given away in marriage. Nobody else was, therefore, to be provided for. A settlement deed no doubt, also may amount to a gift deed but where a property is given without consideration with a view to make a provision for a dependent, it constitutes a settlement deed as defined under S. 2(24) of the Indian Stamp Act. In my view, a reading of the document, Ex. B-18, leaves absolutely no doubt whatsoever that it is a settlement deed. The executor has also described this document as a settlement deed. The executor has also described this document as a settlement deed as defined under S. 2(24) of the Indian Stamp Act. In my view, a reading of the document, Ex. B-18, leaves absolutely no doubt whatsoever that it is a settlement deed. The executor has also described this document as a settlement deed. Though that by itself is not conclusive of the fact that it is a settlement deed, it is certainly one of the circumstances which may be taken into account. The recitals in the document, themselves, referred to above, and the settlement of the property by the husband being in favour of his wife, a dependant, in my view, constitute it was a settlement deed and not a mere gift deed.
11. Mr. Hanumantha Rao, learned counsel for the appellant strongly relied on the decision of the Privy Council in Gopal Saran v. Sita Devi (AIR 1932 PC 34) to contend that the document was a gift deed. In that case, on a construction of the document, their Lordships held, that 'the reference to the person to whom the property was given as wife was merely descriptive' and 'that the grant of the property was not intended of the marriage', and that the document 'was clearly not a contract at all. It was in form and substance a gift for which no consideration was necessary'. Their Lordships were not called upon to consider whether it constituted a settlement deed within the meaning of the Stamp Act.
12. The decision reported in Ranga Rao v. Kithori Ammal, 42 Ind Cas 265: (AIR 1918 Mad 458) to which reference was made in the lower Court also is not one dealing with the question of stamp duty payable.
13. As already observed, even a settlement of property may constitute a gift but for the purpose of Stamp Act, such grant of properties, without consideration, which are made with the intention of making provision for a dependant, are deemed to be settlement deeds for which a lesser stamp duty is payable. No doubt, as contended by the learned counsel for the appellant, the contents of the document alone that must govern the decision as to whether it is a settlement deed or a gift deed. But, a reading of the document (Ex B-18) in my view, clearly discloses that Seetharamaiah purported to make provision for the maintenance of his second wife, who was his dependent, immediately, and only postponed the enjoyment thereof till after his death.
14. In the C.R.P. (No. 1916 of 1969), which was allowed by this Court, as already mentioned, two questions were raised - (1) that the document is a settlement deed and not a gift deed and (2) that even otherwise, the lower Court having admitted the document in evidence and acted upon it, is no longer right in directing that 'Ex. B-18 dated 5-8-57 be and the same is impounded and the same be sent to the Collector for collection of deficit stamp duty and penalty'. The High Court however, in the view it took on the second contention did not decide the first contention, viz., that the document was a settlement deed. For the reasons already stated above, I hold that the document Ex. B-18 is a settlement deed and not a gift deed, and accordingly set aside the finding of the trial Court on additional issue No. 1.
15. Even assuming that Ex. B-18 is a gift deed, the plaintiff cannot succeed. The document was admitted in evidence and once it is admitted in evidence, no objection regarding its admissibility can be taken even in the appellate Court.
16. It was agreed by Mr. Hanumantha Rao, learned counsel for the appellant that the trial Court did not really admit the document was put to the witness, in view of insufficient stamp duty paid, an objection was raised as to the admissibility of the document. But the Court reserved orders on this objection and allowed the document to be put to the witness subject to the decision on the objection raised. The document marked in these circumstances, cannot be deemed to have been admitted in evidence. That objection was disposed of only while disposing of the suit. It is, therefore, argued that the plaintiff is not precluded from raising that question in the appeal. There are, however, two hurdles in the way of accepting this contention. This Court held in C.R.P. 1916/69 that the document was admitted in evidence and once the document is admitted in evidence, the Court had no further jurisdiction to impound it and send to the Collector for collection of deficit stamp and penalty. Accordingly it set aside the order of the trial Court. The order of the High Court has become final. Therefore it is not open to the appellant now to contend in this Court that the document was not admitted in evidence at all. This Court exercising its appellate jurisdiction cannot disregard the judgment in C.R.P. 1916/69.
17. The contention of Mr. Hanumantha Rao, learned counsel for the appellant that the Court hearing the appeal has power under S. 61 of the Stamp Act to reconsider this question, firstly ignores the fact the High Court has already considered this question in disposing of the C.R.P. , and secondly, that under S. 61 of the Stamp Act, the question of admissibility of the document cannot be gone into. All that the Court can do under the S. 61 of the Indian Stamp Act, in the event of its coming to the conclusion that the instrument is not sufficiently stamped and it ought not to have been admitted into evidence without payment of higher duty and penalty thereon, is to record a declaration to that effect and require the person, in whose possession the instrument is, to produce the same into Court. The Court may then send a copy of the declaration along with the impounded instrument to the Collector. That provision does not authorise the Court to reject the documents already admitted in evidence by the lower Court. In fact S. 36 of the Act declares that where an instrument has been admitted evidence, such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped, except as provided under S. 61. As already held, S. 61 authorises only a limited enquiry and declaration.
18. Further the contention of the learned counsel of the appellant that the document was not admitted in evidence when it was put to the witness and marked as exhibit, loses all its force having regard to the fact that the trial Court not only allowed it to be used throughout but also discussed bearing on the various issues arising in the suit. The trial Court decided that plaintiff's plea that the document is vitiated by undue influence and coercion and fraud. The Supreme Court in Javer Chand v. Pukhraj Surana, : 2SCR333 observed that:
'Whether a question as to the admissibility of the document is raised on the ground that it has not been stamped or has not been properly stamped the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of appeal ore revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.'
In this view of the matter, the settlement deed which is marked ad Ex. B- 18, must be deemed to have been admitted in evidence and neither the trial Court nor the appellate Court could now from the evidence.
19. It was next contended that admission of the document is one thing and acting upon that document is another. Hence even if Ex. B- 18 is deemed to have been admitted in evidence, still it cannot be acted upon unless it is sufficiently stamped. The High Court in disposing of C.R.P. No. 1916/69 merely decided the question of admissibility of the document and did not hold that the Court had also acted upon it.
20. In H.S. Ltd. v. Dilip Construction Co. (AIR 969 SC 1238) it was held that: 'by that Section (S. 36) an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act.' This decision does not direct that a document admitted in evidence should be excluded from evidence and consideration by the Court. The procedure prescribed for recovering deficit stamp duty was stated. Having regard to the above, the admissibility of Ex. B-18 cannot be called in question by the appellant at this stage.
21. Further Ex. B-18 has been duly registered. On the registration of that document title to the properties referred to therein pass from the settlor to the settlee. The mere fact that it is insufficiently stamped does not render the document invalid. But once it is admitted rightly or wrongly the admissibility cannot be questioned thereafter.
22. In Purna Chandra v. Kallipada Roy (AIR 1942 Cal 386) it was held that failure to stamp a document which has got to be stamped under the provision of the Stamp Act does not affect the validity of the transaction embodied in the document; it merely renders the document inadmissible in evidence.
23. So is the view taken in Joyman Bewa v. Easin Sarkar (AIR 1926 Cal 877) that settlement deed or a conveyance deed or a gift deed passes title to immovable properties covered by the document, on its registration, the deficient of stamp duty paid on these documents only puts an embargo on the admissibility of the document and not on the transfer of the title to the property. In the instant case the plaintiff herself averred that the settlement deed was, effective and sought a declaration that it is not binding on her on the ground that properties covered by the document were purchased from out of the funds held by her father in trust for her, and on the further ground that it was vitiated by undue influence and fraud. In other words accepting the existence of the document and while realising the effect of the transaction covered by it, the plaintiff sought a declaration that it is not binding on her on the two specific grounds averred by her. The proof of the document or the transaction covered by it was not required to be established by the defendants by any independent evidence. It is not the case where the plaintiff came forward with a simple suit claiming a partition of the properties on the strength of her title. It is a case where she pleaded the existence of the settlement deed and the plaintiff realising that unless the document was avoided, the settlement made by her father was binding on her and she would not be entitled to the property covered by it. She therefore, sought a declaration on the two grounds referred to above. Inasmuch as the truth and validity of the document is not questioned except on the two grounds mentioned in the plaint. The defendant need not have produced Ex. B-18 into Court for granting or refusing relief to the plaintiff for it was admitted by the plaintiff that the settlement was executed. The plaintiff appellants contention with reference to Ex. B-18 is therefore rejected.
24. The other contention raised in this appeal is whether the will Ex. B-13 in favour of the 1st defendant said to have been executed by her husband is true and valid. To establish this part of her case, the 1st defendant examined herself as D. W. 6 the scribe of the will as D. W. 3 and the two attestors as D. Ws. 2 and 3. The trial Court having scrutinised the evidence of these witness accepted their testimony and upheld the will. The learned counsel for the appellants contends that there are many suspicious circumstances which have not been given due weight by the lower Court and these circumstances establish that the will is not true. Before construing the direct evidence on this aspect of the case, it may be mentioned that by the date of execution of the will all the three daughters of the testator by his first wife were married. There was no love lost between him and his children, the three married daughters including the plaintiff were not even on visiting terms. It is admitted by P. W. 1, Kameswaramma who is no other than the person who is said to have provided the funds to the plaintiffs father for the benefit of the plaintiff and defendants 2 and 3, the none of the daughters ever visited their parents house after their marriage. No doubt the reason given is that the first defendant who was their step-mother was not allowing them to step into their parental house. Be that as it may, none of the daughters ever visited their father till his death. It is also in evidence that on hearing the news of the death of their father they merely came and went away. Further, 1st defendant was the only person living along with the testator. She was younger to him by nearly twenty years and was to be provided for. In those circumstances it was but natural for the husband to have thought of making sufficient provision for his wife by securing some property to her. It is in the evidence of D. W. 5 that the testator was suffering from fever and he was running 101 or 102 degrees temperature, and was not in a position to move about. D. W. 2 is an Ayurvedic Medical Practitioner who was attending on him. D. W. 3 who is the scribe of the will, states that it was written at the house of Kantam Raju Seetharamayya, who was the Karnam, and also a private. The word 'private' is used in that part of the State to describe a person who privately attends to matters in Courts and Office on behalf of others. D. W. 3 found the testator lying with fever. The testator told him that he wanted a will to be written. In the meanwhile D. Ws. 2 and 5, the two attestors also came there. Then the testator told them that he had already executed a settlement deed in respect of immovable properties and wanted to execute a will in respect of movable property and asked D. W. 3 to take down the same to his dictation. Accordingly D. W. 3 wrote down. The testator corrected that draft and then asked D. W. 3 to write a fair copy of it. Accordingly D. W. 3 wrote Ex. B-13. The testator as well as the two attestators signed it in the presence of each other. Thereafter D. W. 3 affixed his signature as scribe. He denied the suggestion that the will was forged after Seetharamayya's death. He also deposed that the testator was in a sound and disposing state of mind, but that physically he was not able to write. All that is pointed out is that the testator himself was a document writer and there was no valid reason why he should have got written his own will by D. W. 3. But the evidence of the scribe as well as that of the attestors goes to show that the testator was physically weak due to fever and was not able to write the document by himself. Nothing is elicited in the cross-examination of this witness so as to discredit his testimony. There is no reason why D. W. 3 who is in no way interested in the defendant should perjure himself and be a party to the perjure himself and be a party to the forgery of a will. D. W. 3 is a respectable resident of the same village and his evidence is corroborated by the evidence of D. W. 2. It is stated that D. W. 2 and the 1st defendant belong to the same caste. But this is no ground for holding that his testimony is false. As already noticed, D. W. 5 is an Ayurvedic Medical Practitioner who was attending on the testator when he was unwell. His evidence fully supports the evidence of D. W. 3. It is pointed out that the will was not registered although the testator visited the Registrar's office and signed other documents after the execution of the disputed will. Seetharamayya lived for nine months after the execution of the will. During this period he attended Registrar's Office and signed Exs. B-11, B-12 and B-29. The will is not a compulsorily registerable document. After all under the will he only conveyed some moveable properties and some jewels. The non-registration of the will is, in my view, not a suspicious circumstance. It was next urged that in the will it is not recited that the testator was suffering from ill-health; and the number of the decree which the 1st defendant was authorised to execute was not mentioned. These, according to the learned counsel for the appellants, goes to show that Kantamraju Seetharamaiah has not executed the will. It is not disputed that Seetharamaiah had taken only one insurance policy and there was only one decree debt due to him. He bequeathed the rights in both the insurance policy and decree referred to therein in favour of the 1st defendant. Reference to the number of the Insurance Policy and the decree was superfluous. In those circumstances, the non-mention of the number of Insurance Policy or the decree cannot be treated as a suspicious circumstance. It is also stated that if really Seetharamaiah had dictated the draft will, that draft could have been introduced. I do not think that once a fair copy was made, there was any reason for retaining the draft. After all it is nobody's case that the draft was in the handwriting of Seetharamaiah. The fact that no other relative was present at the time of the execution of the will, it is argued, is also a suspicious circumstance. After all there was no necessity for the testator to call for any of his relatives when he was bequeathing his property to his own wife who was with him then. The learned counsel contends that the signature of Seetharamaiah, the scribe on these documents, is not identical with the signature of Seetharamaiah on the will. I have examined the signature on the will and compared it with the signature of Seetharamaiah in the settlement deed Ex. B-18 which is admittedly executed by Seetharamaiah. A comparison of these signatures on Exs. B-18 and B-13 discloses a close resemblance in the strokes of pen and formation of the letters. The plaintiff has not taken any steps to send the document for the opinion of the expert. Though the signature on Ex. B-13 apparently differs from the purported signature of Seetharamaiah on Exs. B-10, B-11 and B-29, it cannot be categorically stated that it is forged. It closely resembles the signature on Ex. B-18. That apart, Seetharamaiah was admittedly suffering from ill-health and may be in the last days of his life there was slight change in his handwriting. But the fact that the signatures in Exs. B-10, B-11 and B-29 differ from Ex. B-13 cannot override the other evidence that Ex. B-13 was executed by the testator in a sound and disposing state of mind in the presence of the attestors. It is no doubt for the propounder of the will to establish its due execution and also satisfy the judicial conscience of the Court that it was executed in a sound and disposing state of mind. None of the circumstances pointed out on behalf of the plaintiff are sufficient to hold that the will is not duly executed by Kantamraju Seetharamaiah. I, therefore, confirm the finding of the lower Appellate Court that the will is true and valid.
25. It may also be noticed that the first defendant denied the existence of items 3, 5, 8 and 10 to 12 of the 'C' Schedule and claimed the other item to be her own jewels presented to her at the time of marriage and she claimed them as belonging to her. The Court found that there was no ground to disbelieve her evidence and I find myself in agreement with the Court below in this behalf.
26. In view of the foregoing discussion. I do not see any merit in this appeal and it is accordingly dismissed with costs. The Court - fee should be recovered from the plaintiff.
27. Appeal dismissed.