Sanjeeva Row Nayudu, J.
1. This appeal is directed against the judgment and decree of the Additional Subordinate Judge of Rajahrmundry dated 14-4-1953 in O. S. No. 3 of 1952 on the file of the said Court declaring the right of the plaintiff that she is entitled to a partition of the plaint A, B and C schedule properties into two equal shares and for recovery of possession of one such share.
2. The suit was brought by the widow of late Bangarraju and the mother of the 1st defendant claiming to be entitled to the entire A schedule properties with absolute rights and to a half share in the plaint Of schedule properties and for possession thereof. This relief was based on a will said to have been executed by late Bangarraju on 26-2-1950 under which the testator bequeathed the entire A schedule properties with absolute rights to the plaintiff and a half share in the plaint C schedule properties with absolute rights to the plaintiff. In addition, the will, it is claimed, bequeathed the entire B schedule properties in favour of the 1st defendant. As an alternative to this prayer, the plaintiff claimed that in the event of the will not having been found to have been proved, for a partition and separate possession of a half share in the plaint A, B and O schedule properties.
3. The 1st defendant disputed the will on the ground that it was not genuine and that the signatures found therein were not those of his father late Bangarraju. He also claimed to have alienated a portion of the plaint C schedule properties while admitting the plaintiffs claim to a share in the plaint! A, B and C schedule properties but with a limited testate.
4. It is claimed by the plaintiff that the plaint A and B schedule properties were the self-acquisitions of Bangarraju while G sch. properties were the joint family properties belonging to Bangarraju and the 1st defendant does not seriously dispute before rne that the properties described in A and B schedules of the plaint ate the self-acquisitions of Bangarraiu,
5. The learned Subordinate Judge who tried the suit came to the conclusion that the will was not proved to have been executed by late Bangarraju and consequently granted the alternative prayer in the plaint by giving a decree for partition and separate possession of a half share in the plaint A, B and C schedule properties. The plaintiff preferred this appeal claiming her rights under the will and also to the improved right which she acquired by virtue of the Hindu Succession Act (XXX of 1956) basing on which the two petitions filed for amendment of the plaint had been allowed by this Court and the plaint had been permitted to be amended accordingly.
6. The main point that arises for consideration in this appeal is whether the will (Exhibit A-l)l relied on by the plaintiff is genuine and is proved to have been validly executed. A perusal of Exhibits A-l shows that the testator while recounting therein the strained relations between himself and his son, the 1st defendant, nevertheless bequeathed Ac. 2.69 cents in Avidi village bearing S. No. 188/2 described in plaint B schedule property in favour of the 1st defendant although the said property was his self-acquisition and he could do whatever he liked with it. Simultaneously he bequeathed almost an equal extent of land i.e., Ac. 2.61 cents in favour of the plaintiff, his wife, besides two small sites of the extent of 0.03 cents and 0.13 cents in Mahendra-vada village as well as the upstair house in the same village and described in the A schedule to the plaint.
7. As regards the joint family properties now incorporated in the C schedule to the plaint, the testator gave a half share thereof to the plaintiff with absolute rights. Obviously the will did not take effect in respect of the plaint C schedule properties, as they constituted the joint Hindu family properties and by the time the will could come into operation, the doctrine of survivorship would also have operated and the property must be deemed to have reverted back to the other joint family member viz., the 1st defendant. It may thus bo seen that inhe-... rently there is an indication of genuineness in the will itself, for notwithstanding the strained relations which are not only indicated in Exhibit A-l but are also confirmed by the letter (Exhibit A-8) written by the 1st defendant to Lakshminarayana one of his brothers-in-law, tho testator gave a substantial part of his self-acquisitions to his son the 1st defendant.
8. As regards the proof of the will, all tho attestors thereto as well as the scribe were examined and I have been taken through the evidence of these witnesses in detail, and on a careful consideration of the evidence and weighing the same, I am satisfied that tho will is a genuine document. The reasoning to the contrary adopted by the Court below in paragraph 23 of its judgment is utterly unsound and cannot be regarded with any weight in view of the fact that many of the conclusions drawn by the learned Subordinate Judge are based on mere surmises, suspicion and imagination.
The learned Subordinate Judge seems to assume that if a person is a pleader's clerk his testimony is unworthy of credit. Nothing can be farther from the truth. It is only too well known that no witness's evidence can be discredited by reason merely of the profession he pursues or the status he occupies in life. In all cases, the evidence of each witness has to be weighed on its own merits and considered in the light of the other accepted evidence in the case. It is only when there are inherent improbabilities in the evidence given by a witness that a Court of law is justified in coming to the conclusion that it is incredible. To brand a witness as unbelievable on account of the witnesse's status or profession would be completely wrong and I fail to see why a pleader's clerk should not he regarded as worthy of credit.
There are many pleaders' clerks in the legal profession, who are rendering useful service and assistance to the members of the honourable profes-sion. To characterise that a witness is a pleaders' clerk and therefore his evidence should not be accepted is a situation which is totally repugnant to the rules bearing on the appreciation of evidence. P.W. 1 is Pindiprolu Subbarao one of the attestors' to Exhibit A-l. He lives in two houses away from the house of Subbarao, the son-in-law of the testator and and it is not disputed that at that time the testator was living in his daughter's house. He was a pleader's clerk for some time at Kakinada. He franldy admits in cross-examination that he had not been helping the plaintiff in this suit. He further deposed that he was sent for by the testator through his son-in-law, Subbarao, that he reached the place at about 12-00 noon that the other witnesses were present at that time, that Bangarraju was in a sound and disposing state of mind and that he expressed his wishes to the scribe who wrote the will.
There is absolutely nothing suggested against this witness in the cross-examination, except a bare question whether the will was not a forgery. P. W. 4, Velcha Venkataraju, is another attestor to the will. He speaks to the testator having signed on every page of Ex. A-l in his presence and also to the presence of the other attestors who had attested the will hi the presence of the testator. He owns a retail shop in Kakinada and P. W. 3, the son-in-law of the testator Bangarraju was a customer of his in that he purchases retail goods from his shop. He happened to come there as P. W. 3 wanted some wheat on the previous day, which was not immediately available in his shop and which he procured the following day and brought it to deliver the same in the house of P. W. 3. He was asked by the testator and P, W. 3 to wait as the will was being written so that he could attest the same, which he did.
The only suggestion that is made against this witness is contained in the question whether he did not attest Ex. A-l after the death of Bangarraju which he emphatically denied. There is absolutely no reason why the evidence of this witness should bo discredited. P. W. 5 Vadrevu Kasivisweswara Rao, is the scribe of the will. He states the circumstances in which he happened to write the will, that he first prepared a draft and then prepared the fair and read it over to Bangarraju. He is also a pleader's clerk at Kakinada. He knew Bangarraju and is also related to him. He denies the suggestion that Ex. A-l was a forgery.
The evidence given by these witnesses, P. Ws. 1, 4 and 5 is corroborated by the evidence of P. W. 2 the plaintiff, and P. W. 3 the son-in-law of Bangarraju, in whose house the will was said to have been executed. The learned Subordinate Judge was apparently influenced by the impressions he gained on a comparison of the signature of Bangarraju in Ex. B-3, which is an application for admission in connection with his grand-daughter, which was of the year 1944. with those in Ex. A-l. The learned subordinate Judge found some differences and consequently inferred that the signatures on Ex. A-l could not have been those of Bangarraju.
This is hardly a correct method of approach. Inthe first place, it is not of much use to compare asignature of a person said to have been made in 1950with that made six years earlier in 1944 as there islikely to be some change in the signature. Thatapart, in the absence of any marked differences between the two signatures, which indicated prirnafacie that the disputed signature could not. in anycircumstances, have been that of the same personwhose admitted signature had been produced, a Courtcould not be justified in rejecting the disputed signatures as not genuine. I have been taken throughthe reasons given by the trial Court which are setout in paragraphs 25 and 26 of the lower court's Judgment. |
It is only too well-known that the appearance of a signature depends on many factors. The type of pen used, the ink, the quickness of the flow of the pen, the paper on which it was written, the place where the signature is put e.g. a signature on a rough paper would not be exactly the same as that on a smooth paper. In the same way, a signature written with a rough pen would not be the same as a signature with a good smooth-writing pen. Similarly if some smooth pad or some such object is used for resting the paper at the time of the signature, then that signature would be different from the signature put on a paper resting on a rough surface.
There are many factors which have to be taken into consideration in effecting a comparison of the two signatures, and although a Court could apply its own eyes and its own mind to determine whether a particular signature is resembling another it would be going beyond the ordinary limits of the capacity of a Court to constitute itself as a Handwriting Expert and try to compare the signature without all the gadgets and devices which are available to a Handwriting Expert, besides the lack of expert knowledge which a Handwriting Expert possesses.
When oral evidence clearly established that a person executed a certain document it would be completely uneccssary for the Court to embark upon an investigation into the signatures by comparison. Having regard to the opinion expressed by the Court below, 1 had to take the trouble of comparing, the signatures in Ex. B-3 with the signatures contained in Ex. A-l, although it was not quite correct to do so having regard to the long interval of time between the two signatures. I find that the two prominent fetters 'B' and 'Z' are almost exactly similar.
The peculiar shape of the two letters 'B' and 'Z' in fact suggests that the signatures are of the same person. At any rate there is no marked divergence between the two signatures to raise a prima facie inference that these two signatures could not have been of the same person. The learned counsel for the respondent drew my attention to the signature of the testator Bangarraju in Ex. B-6 which is of the year 1947. A comparison of the signature in Ex. B-6 with that in Ex. A-l leaves no doubt whatsoever in my mind that the two signatures must have been put by the same person. Here again, it is only a possible inference which is drawn on the materials available and within the limited scope of the knowledge of a court of law.
But as already pointed out, it would be completely unnecessary to make a comparison when the evidence in the case clearly established that the testator Bangarraju executed the document in the presence of the attestors to the document. I am therefore satisfied on a careful consideration of the materials placed before me that Ex. A-l is a genuine will of Bangarraju and must be given effect to On that footing.
9. The only other question to consider is whether the plaintiff would be entitled to half share with absolute rights in the joint family properties enumerated in the plaint C schedule or whether she would only take a limited interest. The answer to this question would depend on the interpretation to be put on S. 14 of the Hindu Succession Act. It is clear that having regard to the Hindu Women's Rights to Property Act (Act XVIII of 1937) the plaintiff will be entitled to a half share, in any case, in the plaint C schedule properties, which are joint Hindu family properties and under that Act she would take a limited estate. It is Section 14 of the Hindu Succession Act which enlarges the right of Hindu, widow from a limited interest in the joint family property to an absolute interest. Section 14 of the said Act is in the following terms;
'14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument Or the decree, order or award prescribe a restricted estate in such property.'
It is contended by the learned counsel for the respondent that Section. 14 has no application to this case for two reasons viz., (1) that the plaintiff is claiming under will and Sub-section (2) of Section 14 expressly excludes the operation of Sub-section (1) in respect of property which has been the subject of a will and (2) as the plaintiff is not possessed of any property, Sub-section (1) cannot apply to her case. As regards the first point viz., that the plaintiff seeks to claim under the will, it is obvious that the will is inoperative in so far as C schedule properties are concerned as the law stands, and hence there can be no claim whatsoever based on the will so far as C schedule properties are concerned. It cannot therefore be said that the plaintiff is laying a claim to the C schedule properties under a will, as the will in question is inoperative in law, in respect of those properties.
10. The second point requires more serious consideration. The answer to that depends upon whether 'the expression of the word 'possessed' in Sub-section (1) of Section 14 could be construed as actual possession or could also be taken to mean a 'right to possess'. It is unfortunate that the language used in the section is not clear on the point. Normally the expression 'possessed' implies actual possession. If the Legislature intended that the expression should include 'owned' although not 'possessed' they should have expressly said so in which case Sub-section (I) would have read as follows:
'Any property owned by a female Hindu although she may not be in immediate possession thereof, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.'
At the same time one has to notice that the section talks of property possessed after the commencement of this Act, which means that the Act applies to property of which a Hindu female becomes possessed even after the Act came into force. The decisions in Venkavanima v. Veerayya, 1956 Andh LT 1045: ( (S) AIR 1957 Andh Pra 280); Bhabani Prosad v. Sm. Sarat Sundari (S) : AIR1957Cal527 ; Hiralal Roy v. Kumud Behavi, (S) : AIR1957Cal571 ; Billabasim Datta v. Dulal Chandra Datta, : AIR1958Cal472 ; Sm Krishna Dassi v. Akhil Ch. Saha, : AIR1958Cal671 : Venkamma v. Venkatareddy, : AIR1959AP158 ; and Gummalapura 'Taggina Matada Kotturuswatni v. Veeravva, : AIR1959SC577 have been relied on by the learned counsel for the appellant in support of the proposition that the expression 'possessed' should 'be given the wide interpretation and should be regarded as including a right to possession al-though there is no actual possession. The ratio of the decisions in 1956 Andh LT 1045: ((S) AIR 1957 Andh Pra 280) and : AIR1959SC577 do not directly apply to tbe facts of this case. Tho authority that seems to be much in point is the decision, in : AIR1958Cal671 wherein we find the following observations:
'Though the rights are crystallised and are conclusively determined by the preliminary decree, the preliminary decree is a step in a pending litigation and the suit still continues, and any alteration in tho rights of the parties subsequent to the preliminary decree must be adjusted before the final decree is passed.'
There is one another point raised in the case nod that is that Clause (2) excludes property acquired under a decree and it is argued that as the property in this case is claimed under the preliminary decree in the court below, Sub-section (2) excludes the operation of Sub-section (1) from being applied to the property. To this the answer is given that Sub-section (2) contemplates only those cases where the decree in question had become final and that since an appeal has been preferred and since relief has to be given in this appeal and since it is during the pendency of this appeal that the Hindu Succession Act came to be passed, the right of the plaintiff in this case could not be held to hava been excluded by Sub-section (2).
The decision in : AIR1959AP158 is no doubt a clear authority for the proposition that 'Sub-section (2) of Section 14 has no ap. plication to a decree against which an appeal is pending (at the time when the Act came into force) because the decree which gave a restricted estate in the property inherited from her husband has not become final.' The following observations in. : AIR1958Cal671 are apposite:
'In what properties a female Hindu will get full and not limited ownership is stated in the opening clause 'any property possessed by a female Hindu'. If a plain meaning is given to the opening clause, then it must be held that mere possession by a female Hindu, entities her to absolute ownership in the property under Section 14(1) of the Act, whether she is in possession of the same as a tenant or licensee without ownership absolute or limited. This leads to a doubt that the Legislature used the phrase 'possessed by a female Hindu' to mean that the property must be in possession of the female Hindu in order that she may get the benefit of Section 14(1). Again, a Hindu female may have title to tbe property, but no possession, actual or constructive. If possession is the test at tbe material date, then a Hindu female who has lost possession but whose right to possession is not lost, would not get absolute ownership, under Section 14(1) but only limited ownership as provided in the old Hindu Law. The moment, however, she gets back possession bv suit or otherwise, her limited ownership is converted into absolute ownership.
The phrase 'possession' in the opening clause of Section 14 has been used in the sense of ownership which gives rigbt to possession:
X X X XAgain if tho intention of the Legislature was to exempt properties in which a Hindu female had limited title but not possession, then properly this exemption should have found its place in Clause (2) where the exemptions have been enumerated. The Legislature could not have intended that possession would be the test of the applicability of Section 14(1). Possession had nothing to do with the acquisition of absolute ownership of properties in which the Hindu female bad limited ownership.'
I respectfully follow these observations and hold that the Legislature obviously intended that Sub-section (1) to Section 14 should apply to all cases where a female Hindu becomes entitled to property irrespective of whether she had actual possession or not on the data the Act comes to be applied. Otherwise, the easiest way of defeating the Act is to deprive the femala Hindu of her actual possession of property by a trespasser, a day before the Act came into force and the mere act of a trespasser would, in that interpretation of the section, preclude the application thereof to the Hindu female and she would lose all the benefits I of the Act. Obviously, that could not have been in the contemplation of the Legislature.
The whole purpose and object of the Act is to convert what was a limited estate into a full estate, thereby removing the disability under which the female heirs in Hindu Law were, in the matter of inheriting estates. I have, therefore, no doubt whatsoever that the Hindu Succession Act applies to the estate claimed by the Hindu widow, although she may not be in actual possession thereof.
11. The same conclusion can be reached by adopting the reasoning from a different angle. Let us assume that Section 14(1) of the Act has no immediate application, because the plaintiff is not in immediate possession of the property- Now this Court decrees the suit. Let us say on the footing that Section 14 did not apply. Then the plaintiff would be entitled to a limited estate having regard to the provisions of the Hindu Women's Rights to Property Act (XVIII of 1937). She executes the decree and gets into possession of her share.
Immediately Section 14(1) of the Hindu Succession Act would come into operation and she would be vested with full rights in the property. Surely, when such a consequence is inevitable having regard to the section, it could not have been in the contemplation of the Legislature that the benefits of Section 14 should not be given at this stage. In any view of the matter, therefore, the plaintiff is entitled to the reliefs asked for in the plaint.
12. The appeal is allowed to the extent of grant' ing a decree in favour of the plaintiff for possession in respect of the plaint A schedule properties and also granting a relief for partition and separate possession of a half share in the plaint C schedule properties. The appeal is accordingly allowed hy modifying the decree of the court below by declaring that the plain-tiff is entitled to absolute rights in the plaint A schedule properties as well as in the half share that would be allotted to her in the plaint schedule properties. The appellant would also be entitled to costs in both the courts against the 1st defendant. As regards the profits claimed, the same will he ascertained by the Court below on a separate application to be made by the appellant (plaintiff).
13. It is pointed out by the learned counsel for the respondents Nos. 5 to 8 that items 1 to 3 of the plaint C schedule have been aliennted to them. In the partition, as far as possible, these items would be allotted to the share of the first defendant.