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Kunapareddi Venkamma and anr. Vs. Kanapareddi Ramayya - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.727
AppellantKunapareddi Venkamma and anr.
RespondentKanapareddi Ramayya
Excerpt:
will - burden of proof--matters between first inception and final drafting--importance. - .....heads together to prepare the draft. there is no suggestion made by the 1st witness that the 2nd witness was present at the time when the testator dictated the particulars of the will. but in the story given by the 2nd witness we find that he says that he was present when the testator gave the particulars and that he it was that dictated the whole will to the 1st witness to write down. now this is a substantial discrepancy in the story told by these two witnesses. the karnam himself does not seem to be altogether an unimpeachable witness. there are statements in his evidence which we do not credit. it is, no doubt, singular as pointed out by the district judge that for the writing of this will, a beggar like the 1st witness, should have been chosen.4. passing on to the evidence of the.....
Judgment:

1. This is a suit to set aside an adoption and to declare a Will not to be genuine. The plaintiff is the stepmother of one Krishnama, deceased. Krishnama died on the 7th August 1904. The 2nd defendant is the alleged adopted son and the 1st defendant is the widow of Krishnama. They rely upon a Will said to have been executed by Krishnama about 36 hours before his death, which is filed as Exhibit I in the case. It is said to have been executed in the evening, between 4 and 5 P.M. on the 5th August 1904. The Will was presented for registration about 25 days after Krishnama's death on the 2nd September 1904 and though objection was raised to the registration, the Sub-Registrar ordered the registration of the Will on the 21st December 1904. The validity of the adoption depends upon the genuineness of the Will. The onus of proving the Will rests upon the defendants, and we agree with the District. Judge in coming to the conclusion that the defendants have not discharged that burden. The testator is a marksman. We have no means therefore, of determining as in the case of a signed Will, whether the testator has put his signature to the document. It is stated on behalf of the defence that the substance of the Will was dictated by the testator to the first witness, who is the writer, and that he and the Karnam who is examined as the second witness, sat together and prepared the draft, and after they composed the draft they read it over to the testator who suggested some corrections and that they afterwards had the draft copied fair. They story for the defence is supported by the 1st, 2nd, 3rd, 5th and 6th witnesses who are the attestors of the document. There is also the evidence of the widow, the 1st defendant. The 4th and 13th witnesses for the defence are the Village Munsif and the Station House Officer. They are not attestors, but they speak to the fact that the testator expressed a desire for the execution of a Will and that he gave out the terms. In the first place, it is worthy of remark that there is no provision made in the Will for the two daughters the testator had. One of them, it is stated by Mr. Prakasam before us, was about 10 years of age at the time if so, she would have been of marriageable age. There is no provision made in respect of the marriage of that girl or the other girl, although the testator makes a reference to the appropriation of a sum of Rs. 400 for the marriage of his step-mother. It is somewhat remarkable that the testator really makes a disposition of all his property in favour of his widow and ends the Will by giving authority to adopt without making any provision for either of his daughters. The testator, it is the common case of both the parties, left his own village when he was seriously ill and went to his father-in-law's house in Veeranalli. He had also a brother-in-law and there is no doubt whatever that his brother-in-law, Venkayya, and his father-in-law took a leading part in getting the Will prepared. Some of the witnesses admit that it was Venkayya that sent for them for the purpose of being present at the execution of the Will and for affixing their attestations to the document. It is, therefore, worthy of note that neither the father-in-law nor the brother-in-law has gone into the box. All the evidence that is given in the case is merely as to what happened at the time that the testator dictated the terms of the Will, the draft was made and the fair copy was signed by him. We have no evidence as to when the terms of the Will were first thought of, when the writing of the Will was also first thought of and what happened between the first inception of the idea and the drafting of the Will. Evidence on such matters is of great importance in enabling the Court to arrive at a conclusion as regards the genuineness of a document put forward as a Will.

2. Again, there are corrections in the Will. But there is one noteable correction in the 31st line. There is a note at the end of the Will of the corrections made in it. There is reference made in it to the corrections in lines 7, 15 and 29. The corrections in these three lines are very small. They are probably of one or two letters, while the correction in line 31 is the scoring out of many letters. And yet, strangely enough, there is absolutely no reference in the correction memo, made at the end of the Will to this large correction in the body of the document. Moreover, it appears that the scoring out of this line and the initialling by the writer are in ink different from that in which the body of the, document is written and the attestations are made. There is no doubt that this correction was present, at the time of registration. But it is difficult to believe that if the, document was a genuine one and had been executed by the testator this correction was in existence at the time that the testator's mark was appended to the document.

3. As regards the evidence given by the witnesses, the District Judge points out that the story told by the 1st and 2nd witnesses is substantially discrepant. The first witness would have it that the testator dictated the terms of the Will. He, no doubt, adds in cross-examination that he had in his memory what the testator said and that then he and the 2nd witness put their heads together to prepare the draft. There is no suggestion made by the 1st witness that the 2nd witness was present at the time when the testator dictated the particulars of the Will. But in the story given by the 2nd witness we find that he says that he was present when the testator gave the particulars and that he it was that dictated the whole Will to the 1st witness to write down. Now this is a substantial discrepancy in the story told by these two witnesses. The Karnam himself does not seem to be altogether an unimpeachable witness. There are statements in his evidence which we do not credit. It is, no doubt, singular as pointed out by the District Judge that for the writing of this Will, a beggar like the 1st witness, should have been chosen.

4. Passing on to the evidence of the other witnesses in the case there seems to be nothing particularly noticeable in their position or their antecedents which compels us to accept their testimony as true. As already remarked, the Village Munsif is not present at the execution of the Will. He has not given any satisfactory reason for himself not making the draft to the dictation of the testator. As regards the Station House Officer, also, it seems to us that his evidence is not above suspicion. He is present to hear the testator give his directions, but makes himself scarce at the time when the Will itself is executed. Such a convenient testimony which saves the witness from the chance of implication in a forgery is always open to suspicion. We do not, therefore, attach any value to his evidence. We have carefully considered the entire evidence adduced on behalf of the defence in support of the Will and we have no hesitation in coming to the conclusion that the Will is not a genuine one. We must, therefore, confirm the decree of the District Court and dismiss the appeal with Costs.


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