1. All the three appeals and the revision petition which are before us arise out of a suit brought by the minor plaintiffs against Narukula Venkayya and his wife Rangamma in the Zilla Court, Warangal. These plaintiffs are the grandsons of one Nuna Ramayya. who died leaving surviving him widow Nagamma and a son by the first wife, Venkayya, the father of the plaintiifs. It is common ground that after his marriage with Nagamma, Ramayya became separate from his son both in residence and food and that they used to cultivate their lands separately. According to the defendants, this was in consequence of partition between the father and the son.
This position is not accepted by the plaintiffs who attribute it to mere administrative convenience, but their previous plaint filed in the Madhira Court through their maternal grand-father contains clear admission to that effect. As Nagamma had no issue she brought up her sister's daughter. Rangamma, defendant No. 2, and got her married to 1st defendant. Both the defendants were living with her during the life-time of Ramayya. After the death of Ramayya which took place two years prior to the death of plaintiff's father, Nagamma was found in possession of the property left by Rarnayya.
She however died in 1351 F. Plaintiffs claim that they got into possession of the immovable property thereafter but were subsequently dispossessed by defendants 1 and 2. This the defendants do not admit. Their contention is that Ramayya during his lifetime gifted away his properly, which included a moiety of what was once the ancestral property, to Nagamma under a registered gift deed in the year 1343 F. From that time onwards Nagamma was in possession of the gift property. She executed a with of the same in favour of defendants 1 and 2 as a result of which defendants as legatees and defendant No. 1 also as the illatom son-in-law of Ramayya acquired an indefeasible right and continued in possession of the property.
Their further contention is that the schedules of : moveable property filed by the plaintiffs are not correct. Plaintiffs categorically deny the factum of gift made by Ramayya and the testamentary disposition of Nagamma and her competence to make the: same. They claim the suit property as the surviving coparceners or heirs of Rarnayya and also in the alternative as the nearest heirs of Nagamma herself. On these pleadings, eleven issues were settled. The trial Court found that the gift in favour of Nagamma was fully proved but not her will and as no title could pass to any of the defendants on that account the learned Judge decreed the claim of the plaintiffs.
The First Appellate Court however modified the decree in relation to mesne profits and disallowed the claim to moveables which according to it was not established. Aggrieved by this decree both the parties have come in appeal, the defendants' appeal being S. A. No. 558/50 and that of the plaintiffs' being S. A. No. 64/51, The contest between the parties doe's not end at this. The plaintiffs in schedule A committed two mistakes. One is a mistake as to the area and the other as to the survey number. An area of Ac, 33 1/2 instead of S3 1/2 guntas was-entered in relation to S. No. 526/3 and Survey No. 524/4 instead of survey No. 529/4 was wrongly entered in the schedule A and these mistakes were obvious from the gift deed relied on by the defendants themselves.
These being accidental slips the trial Court, on the application of the plaintiffs ordered correction and the necessary amendment in the decree. As a result the defendants have come in revision which is No. 264/4/51-52. There is another appeal preferred by the defendants and this is directed against the order passed in relation to mesne profits and this appeal is 107/3/51. This judgment will govern all these proceedings.
2. Appeals S. A. Nos. 558/50 and 64/51 involve only questions of fact on which both the Courts below are concurrent to a great extent. Such appeals would have been incompetent had it not been for the provisions of Section 602 of the Hyderabad Civil Procedure Code which governs them. That Section permits Second Appeals even on questions of fact. We have therefore to examine how far on a review of evidence the findings of the Courts below can be sustained.
3. Though several points were raised in the memorandum of appeals the learned counsel confined their arguments only to issues other than issues Nos. 1 and 3 to 5. Out of these the issue No. 6 is the vital issue on which the fate of the defendants' appeal mainly rests. It relates to will and the dispute primarily centres round the question of its execution. The defendants examined D. Ws. 2 to 9, 16 and 18 in support of the will and the plaintiffs in rebuttal have relied on the sworn testimony of P. Ws. 3, 4, 7 and 9. It is no doubt true that this will is not produced for the first time in this suit.
It was referred to in the written statement filed in a previous suit relating to the same property brought by the plaintiffs in the Madira Court and was actually filed there on 31-7-1351 F. within a short period after Nagamma's death. But that circumstance alone does not absolve the defendants from the necessity of proving that the said will is true and was executed by a tree and capable testator. It is manifest that the will is propounded by defendants who get full benefit thereunder to the exclusion of the plaintiffs who in the natural course of events ought to be entitled to the entire estate.
The plaintiffs have categorically denied the will. In the circumstances the Courts will indeed demand strict and clear proof of the genuineness of the will and disposing state of mind of the testator. The question of genuineness of course would depend not only on the assertions of the witnesses but also upon the surrounding circumstances and facts admitted or proved. As a matter of fact the veracity of witnesses will be tested by reference to such facts. The onus probandi however lies on the defendants to show that the will is natural and in full accord with the feelings, sentiments and tenor of the life of the testator and that it is her last will. Both the elements are essen- tial to be established before the party can hope to get a decision in its favour.
That a will is reasonable or proper in terms or even that it expresses natural inclinations or desires of the alleged testator, is, by itself no answer or defence for the contention that its execution is not proved. In the absence of satisfactory proof of. its execution, the authorship of a will cannot be presumd in law by mere terms of the will. The law is that in order to be effective it should be the last will of a free and capable testator.
The reasonableness of the terms may be a favourable circumstance but only to show that there can be no suspicion inherent in the transaction and that the disposition is such as is likely to be made by the testator. But this does not displace the proof of execution. That has to be proved as any other fact. The standard of proof required in the criminal case may not be applicable. Certainly the standard is not an absolute or conclusive one. It is only that of a prudent man.
The Court should be of opinion that under the circumstances, a man of ordinary prudence can act in the belief that the document is executed by the testator. As already observed the veracity of the statements of the witnesses should be tested in view of the surrounding circumstances. A further duty is cast on a court of appeal not to lightly disregard the view of the credence taken by the trial Court where the simple question is which set of witnesses is to be believed. With these principles in view, we proceed to consider the evidence on record. (After discussion of the evidence, the judgment proceeds as follows:)
Thus this defendants have not only failed to establish affirmatively the execution of the will deed by Nagamma but also there is sufficient material on record to discredit such a story. Both the Courts below have expressed the same opinion. We see no strong grounds to differ from that view. There is no force in the argument that the discrepancies are minor and that they are merely the outcome of lapse of memory or inattention to details. We are firmly of the view that they are material an3 expose the falsity of the defendant's story. Great stress has been laid on the balance of probabilities.
It is argued that since 1st defendant was her own sister's daughter to whom the deceased was greatly attached and even got her marriage celebrated and both the defendants were living with her till the last breath of her life, it is highly probable that they became the proper object of her bounty and the will should therefore be regarded as genuine. It is argued on that basis that notwithstanding the material discrepancies in the statements of the witnesses, the will must be given effect to. We find no force in this argument either. Apart from the fact that the probabilities are not at all conclusively in favour of the defendants, we are not prepared to agree with the proposition that the alleged will can operate as valid will even though its contents were unknown to the deceased and she had not approved of the same. Merely because its terms appear to be reasonable a document purporting to be a will deed cannot without due proof of its execution operate as a valid will.
4. Learned counsel on behalf of the defendant-appellants has cited various authorities for a contrary proposition but these authorities do not help his case. Brahmadat Tewari v. Chaudan Bibi, AIR 1916 Cal 374 is not an authority as is argued by the learned counsel for the proposition that the reasonableness of the terms would displace the necessity of proof of execution of the document. All that it says is where a will is regular on the face of it and there is ample reliable evidence on record to show that it was duly executed and attested, strict proof of compliance with the statutory requirements need not be insisted upon and even though the evidence of an attesting witness may be vague or even conflicting on some material point on consideration of the circumstances or other evidence, the Court may pronounce in favour of the will. Obviously, these observations do not help the proposition that the proof of execution is unnecessary.
It would appear from the judgment in that case that there was ample reliable evidence on record to show that the will was duty executed and attested and there was only some doubt as to the full compliance with the requirements of the statute as regards due attestation. Of course there was a further question Involved relating to appreciation of evidence but the decision is clear that there should be some reliable and trustworthy evidence in proof of the execution of the will. In Dulhin Genja Kunwar v. Harnandan Prasad Singh 33 Ind Gas 790 : (AIR 1916 PC 157) there was again the question of appreciation of evidence.
The trial Judge has held the will proved but the High Court differed from that view on the ground that it was not executed by publicity and the witnesses who proved it were men of low social position. It was held that since the persons who are available at the time of the execution had signed the will, it was improper to reject their evidence merely on the ground of their inferior status. In Ishar Kaur v. Doulat Ram, a point as to appreciation of evidence by the Appellate Court had no doubt arisen for consideration. Following the observations of their Lordships of the Supreme Court in Sarju Pershad v. Jwaleshwari Pratab, : 1SCR781 it was held that:
'When there is a conflict of oral evidence of the parties on any matter in issue and the decision hinges on the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not inter/ere with finding of the trial Judge on a question of fact.'
Madhavayya v. Achamma, AIR 1949 P. C. 325 is also a case involving question of appreciation of evidence in relation to execution of document. It is however abundantly clear that without due proof of execution of the will the party cannot successfully rely on the terms of the will. It would appear that even according to 1st defendant and his father (as D. W. 16J the relations between the deceased and the minor's father were not strained so that it may be ruled out that Nagamma could not be moved by any consideration favourable to the minor plaintiffs at the time of disposition of her property. It therefore follows that the probabilities are not conclusive in favour of the defendants. At any rate, inasmuch as the execution of the document is not proved the defendants can set up no claim on the basis of the disputed will.
5. It is then argued that since the 1st defendant is the illation son-in-law, he is entitled to the property as such. It should be remembered that no issue was raised on that ground with the result that the parties could not adduce any clear evidence in that behalf. It would appear from pleadings that though the plea of illatom adoption in somewhat vague terms was set up by the defendants it was categorically denied that the defendant could ever in law be deemed to be an illatom son-in-law.
It does appear from the evidence that defendant No. 2 being the sister's daughter, Nagamma had brought her up as she had no issue and later on got her married to first defendant and both of them were living with her till her death. 1st defendant of course was assisting Nagamma's husband and after his death was working at the farms and looking after her household affairs, but the question is, whether that gives him a status of illatom son-in-law so that he may set up a claim for the property of Nagamma or her. husband. Relying on the dictum in Balaramireddi v. Ramamma, 18 Ind Cas 698 (Mad), the learned counsel has argued that inasmuch. as 1st defendant was taken into Nagamma's house for the purpose of marrying her foster daughter and was described as her son-in-law, he acquired all the rights of an illatom son-in-law. But this authority is in conflict with the decisions of this Court.
In Narasayya v. Ramachandrayya, AIR 1956 Andhra 209, the essentials of ilfatom adoption and the incidents thereof have been discussed at great length. It was observed that it is necessary that the adoptee must marry the daughter of the adopter and that there must be an agreement to give him a share. Merely living in the House of the father-in-law and helping in the management of the property would not make him an illatom rson-in-law. Both the ingredients must needs be established to confer the status of illatom son-in-law on the person claiming.
It was also held that the institution of illatom adoption which, in other words is affiliating a son-in-law in the family of the adopter and giving him a share is purely a creature of custom which has received judicial recognition. Unless such custom is proved in that community it cannot be accepted at all. It was further observed that there is no cus-tom that a person by marrying the near relation of the adoptor i. e., foster daughter, is treated as an illatom son-in-law. This authority is clearly against the defendant. The questions of proof and incidents of illatom have been also discussed in single Bench case Venkateswarlu v. Raghavulu, 1955 Andh. W R. 39: (AIR 1957 Andhra Pradesh 604) and also in Nagi Reddi v. Najundappa, AIR 1940 Mad 761. In this view of the law on the subject, it is impossible to hold that defendant is the son-in-law or that ho can as heir set up a claim to the property left by Nagamma. At any rate inasmuch as no special custom is set up as being prevalent in the community to which the parties belong, following the dictum laid down in AlR 1956 Andhra 200 we reject the claim of the defendants.
6. The last agrument advanced by the learned counsel is that the claim of the plaintiffs has not been consistent throughout. While in a previous suit admitting the partition between their father and grandfather they set up their claim to the property by reason of the death of Nagamma they claim now as the surviving coparceners and the evidence too has been adduced on these lines. The courts below did not countenance their claim as surviving coparceners but nevertheless granted relief on the basis of their being nearest heirs to Nagamma.
The contention of the learned counsel is that the courts could not grant relief making out a new case for the plaintiffs which is inconsistent with the one set up by them in their plaint. While we agree that the basis of the claim as set up in the previous suit is different from the one in this case, yet it would appear from paragraph 8 of the plaint that the plaintiffs have set up ther right on two alternative grounds and that in our opinion would warrant the grant of relief that they may be entitled to on any of those two grounds. As a matter of fact, the Courts below have decreed their claim on that ground. The contention of the defendants therefore fails. In the result their appeal S. A. No. 558 of 1950 is dismissed without costs.
7. Now, we turn to the appeal S. A. No. 64 of 1951 filed by the plaintiffs. It relates to two items. It would appear that while the trial Court had granted relief in relation to the movable property, the appellate Court rejected such a claim. Further, the claim for mesne profits was not allowed in its entirety by both the Courts below. The trial Court had granted only Rs. 100/- towards mesne profits ever, though the amount claimed was Rs. 500/-The plaintiffs therefore have come in appeal against the order in relation to both these reliefs. Issue No. 7 relates to the first part of their claim and issue No. 10 relates to the latter part. So far as issue No. 10 is concerned, we do not see any reason to differ from the conclusion arrived at by both the Courts. In the absence of clear proof as to the quan turn, the figure arrived at cannot be said to be wholly unreasonable and the directions given under Section 238 of the Hyderabad Civil Procedure Code are in accordance with law.
8. Now the only point that remains for consideration is whether issue No. 7 has been fully established. (After discussion of evidence the judgment proceeds:) In this way. 8 bullocks 12 she-buffaloes, 2 bandies, 6 candies of paddy, one candy of jawar, 2 cart loads of kadivi & 7 or 8 cart loads of grass can held to have been left by the deceased which came into possession of the defendants and a decree can be given to that extent against 1st defendant. The question as to value of course shall have to be determined and this may be left to the Court executing the decree. The price, of course, will be determined according to the rates prevailing on the date of the suit. The appeal of the plaintiffs to this extent must be allowed and we accordingly allow the same without any costs. We may make it clear no relief can be granted as to ornaments claimed.
9. Then we come to appeal No. 107/3/1951. It is in relation to the determination of the mesne profits for the period pending litigation. We do not see any mentis in this appeal for when it is established that the defendants were in unlawful possession of the property they will necessarily be liable to pay the mesne profits and in a suit brought for possession of the immovable property together with mesne profits the decree in relation to mesne profits will have to be drawn in terms of the provisions of Section 238 of the Hyderabad Civil Procedure Code. The direction given by the Court below is in full compliance with Clause (c) of Section 238 (1). The appeal against such order is therefore without merits. We therefore dismiss the same.
10. Now, we turn to the revision petition. As already stated, a mistake was committed by the plaintiffs in entering the correct acreage of S. No. 526 and also in relation to S. No. 529 which was incorrectly entered as S. No. 524. That it was due to sheer inadvertence is evident from the description, given in the gift deed relied on by the defendants themselves. Admittedly the deceased was not in possession of S. No. 524 nor was the acreage of S. No. 526 more than 33 1/2 guntas.
The suit related to the property once in possession of Nagamma and S. No. 529 was the survey number that was in her possession. As a mistake in this behalf crept into the plaint schedule the same mistake necessarily entered into the judgment and decree. It is indeed an accidental slip and a clerical mistake. This can be rectified under Section 152 C. P. C. There is nothing which limits the power of the Court under Section 152 to correct such errors and mistakes which arise in the suit.
In appropriate cases like this where mistakes have arisen by reason of inadvertence in entering the number in the plaint, the Court has ample powers under Section 152 to correct such mistakes. The Court below has discussed this point at length. We do not feel called upon to enter into a detailed discussion on the subject with reference to the authorities on the point. But we feel however, that this power could have been exercised only by the Court that passed the decree in appeal.
The trial Court could not rectify such mistakes in the judgment or decree which has been superseded by the appellate Court's decree or has merged into the same. The counsel for the petitioner realised this mistake and has filed a petition to this Court for correcting the error, as the appeal is pending before us. We have given opportunity to the other party to file counter and heard his counsel in that behalf. The respondents no doubt oppose the petition but there can be no doubt that the mistake that has crept into the plaint by sheer inadvertence is responsible for the mistake or error in the decree.
In exercising of our powers of appeal in relation to the decree under appeal, it is perfectly open to us to correct the necessary mistakes. We therefore direct corrections be made in the plaint schedule and also in the decree in relation to the acreage of Survey No. 526 and S. No. 529. The petition filed by the plaintiff is therefore allowed. No orders are necessary in the revision petition.
11. In the result. S. A. No. 558 of 1950 is dismissed without costs; S. A. No. 64 of 1951 is allowed in part without costs; C. M. A. No. 107/3 of 1951 is dismissed without costs and no orders are necessary in C. R. P. No. 264/4 of 1951-52 as it has become infractuous on account of an order in C.M.P. No. 798 of 1958. The petition filed by the plaintiffs i.e., C.M.P. No. 798 of 1958 is allowed. nO, order as to costs in Revision Petition. It may be recorded.