Nyapati Narayana Rao And Others v. Mudhavalapu Purushothama Rao

JUDGMENT

(Delivered by Varadachariar, J.)

The question for decision in this case is whether the will (Ex. 4) said to have been executed by one Seshagiri Rao on 4th August 1926 is genuine and valid.

Seshagiri Rao had two sons, the plaintiff and the first defendant; Defendants 2 and 3 are the sons of the 1st defendant. Many years ago the plaintiff had been taken in adoption by Seshagiri Rao's wife's maternal uncle; it happened that in the family of adoption the plaintiff did not get much property and the evidence establishes that the plaintiff had been pressing his natural father to make some provision for him and that the natural father intended to do so. The 1st defendant on the other hand was educated at his father's expense till he took his B.L degree and settled down to practise at Guntur. The 1st defendant no doubt became a man with a large family and did not perhaps succeed as well at the profession as he might have desired and he might be justified in feeling that his father ought to have treated him more liberally than he had done. But the evidence leaves no doubt in our mind that the 1st defendant was not altogether in the good graces of his father and that even making allowance for the first defendant's financial position the plaintiff stood in greater need of help from his father. There is also indisputable evidence that the father was consulting his lawyer friends and relations as to the best manner in which he could effectively carry out his intention to make some provision for the plaintiff. As the father and the first defendant were undoubtedly members of a joint Hindu family and some of the properties which the father proposed to deal with were joint family properties, the father seems to have been advised that unless some arrangement could be effected by agreement with the first defendant, it would be necessary for him to get divided from the first defendant by a notice of intention to become so divided. Ex. C, a draft notice prepared with this object in view by P.W 9 some years before, makes it clear that the father was clearly aware that this was the only alternative open to him, unless it was possible to arrange amicably with the first defendant to benefit the plaintiff to some extent.

Whatever might have been the relations between the father and the first defendant prior to 1920, it is obvious that between 1921 and 1926 the cordiality between them was not by any means improving. The letters filed in the case show that the father was finding fault with the first defendant for one thing or another and regretting the way in which he had spent his moneys on the 1st defendant. On the other hand, the 1st defendant seems to have felt that his father was not treating him properly and more than once protested, thought in vain, against any such treatment. It is in the light of these facts that we have got to determine the question whether Ex. H was a likely disposition to have been made by the father. In the view we take of the credibility of the direct evidence in support of the execution of the will by the father in a sound disposing state of mind, the question of the naturalness of the disposition is of only secondary importance; but as the learned Council for the appellant has dealt with that question at length, we have set out the material facts above to show that even from this point of view the execution of the will was by no means improbable. Our attention was also drawn to the fact that the daughters of the testator were often pressing him for help and sometimes receiving help and it was contended that it is hardly likely that the testator would have given away all his share in the joint property and the whole of the self acquired property to the plaintiff without making any provision for the daughters. The daughters had admittedly been married and in the ordinary way of the world, they were comparatively well off. It may be that so long as he was in possession of the properties, the father was prepared to help them now and then but his estate was not so large that when he came to distribute it, he could benefit every body whom he had been helping during his life-time. We therefore see no force in the argument based on the omission to provide for the daughters.

The writing and the execution of the will have been spoken to by P.W 6 the writer and four attestors, P.Ws 2, 3, 4 and 5. The learned Judge who saw these witnesses before him has accepted their evidence almost unreservedly and even making allowances for possible exaggeration, so far as P.Ws 2 and 3 are concerned, we see no reason whatever to doubt the credibility of P.Ws 4, 5 and 6. These three persons are men of status and of some education. They have absolutely no personal interest in the matter and P.W 4 was undoubtedly a neighbour of the deceased. P.W 6 has served many years with the deceased and P.W 5 was the brother of the deceased. It is difficult to see how the first defendant could have seriously expected the Court to discredit the evidence of these witnesses. P.W 5 has not been shown to have had any bias against the first defendant, though first defendant unfortunately thought fit to anticipate the opinion which the Court will form as to the truth of the will from his attestation, by suggesting even in his written statement that P.W 5 was not on good terms with himself. When it came to the evidence the Judge rightly points out that this allegation was found to be baseless. These witnesses have given a detailed and convincing account of what happened in connection with the preparation and the execution of the will and on that evidence we must hold that the execution of the will has been proved beyond all doubt. We may add that the physician who was admittedly attending on the deceased for a few days before his death has been examined as P.W 7 and his evidence also seems to us quite reliable. The deceased had an attack only of cold and fever to start with and it is only on the fifth day that it developed into pneumonia. He died at about 6 P.M on the 5th August and the will is said to have been written between 7 and 9 on the morning of the 4th August. Having regard to the nature of the illness, we see no reason to doubt the correctness of the version of P.W 7 that till the morning of the 5th August there was no delirium or unconsciousness or inability to speak. We have also compared the signatures affixed by the deceased to the several pages of Ex. H with his admitted signature in several documents and are satisfied that the signatures in Ex. H show all the characteristics of his admitted signatures. At least four respectable witnesses who are familiar with his signature and competent to speak to it have deposed that these signatures do not differ in any material particular from his admitted signatures.

Two arguments pressed on behalf of the appellant remain to be noticed: (1) non-registration of the will during the testator's lifetime though he was living in a town like Bezwada at the time and (2) a description given by a deceased friend of the 1st defendant in Ex. IV as to the condition of the deceased on the noon of the 4th August. In the circumstances, we see little force in the objection based on non-registration. As we have already stated, there was no reason to think on the 4th August that the testator was likely to expire so soon and the story given in the evidence of some of the witnesses that he intended to get the will registered in due course after he recovered, seems by no means improbable. As regards the statement in Ex. IV, we are not prepared to hold that the letter is admissible in evidence at all. It certainly does not fall under any of the clauses of S. 32 of the Evidence Act and we do not see under what other provision of law it may be admissible. Even if we are prepared to look at the statements contained therein, we are unable to accept those statements at their face value. According to these statements the deceased was unconscious and unable to respond even to a loud call on the 4th noon. On the other hand, the evidence of P.W 12, a natural brother of the deceased who is practising at Guntur and whose evidence even the defendant's learned vakil did not challenge, shows that even on the afternoon of the 5th the deceased was conscious enough to recognise him. It is true that this witness, though he was informed by P.Ws 2 and 5 of a will having been executed on the previous day, did not ask to be shown the will nor was he shown the will; but in a passage whose truthfulness we do not for a moment doubt, the witness explains how he was shocked to find his brother in that condition as he had no previous knowledge of his illness and it is ridiculous to suggest that in that tragic situation the wintess, even though he was a vakil, would have been asking about the will or those around the death-bed would be eager to create evidence by showing the will to him. We have therefore no hesitation in holding that Ex. H was executed by the deceased Seshagiri Rao when he was in a sound disposing state of mind.

As the deceased was a member of an undivided Hindu family, the question of his right to make a will disposing of his share in the joint family property has next to be considered. To enable him to do so, it is alleged by the plaintiff that he sent a registered notice Ex. J on 3rd August 1926. Having regard to what we have already stated as to the advice that the deceased had been given on this matter, it is not by any means unlikely that this step would have been taken. The preparation of the draft for Ex. J is spoken to by P.W 10 a witness whom the trial Judge regards as quite respectable; and the writing and execution of Ex. J is spoken to by P.W 4 whom the learned Judge has unhesitatingly believed. We therefore see no reason to doubt the genuineness of Ex. J nor the fact of its having been sent with the knowledge of the deceased. Ex. J is a postcard and the postal seal shows that it was posted at Bezwada on 3rd August 1926. In the ordinary course it would have been delivered to the first defendant at Guntur on the 4th, but it so happened for reasons to which we shall presently refer that it was not actually received by the first defendant till the 9th. An argument has accordingly been addressed to us as to whether the mere posting of Ex. J on the 3rd August was sufficient to validate the will executed on the 4th when in fact the deceased died on the 5th before Ex. J had been received by the first defendant. To obviate such an argument it was suggested on behalf of the plaintiff that the first defendant must have become aware of the contents of Ex. J even on the 4th August and that he purposely evaded receiving it. We are not satisfied that there is sufficient proof of this or even some justification for the suggestion. Seeing that this suggestion had been made or might be made, the first defendant applied to the postal department for an exact statement of the reasons for the delay in the delivery and Ex. III gives the material information. The first defendant resides in one postal division of Guntur whereas the Court situate is in another postal division. The result was that by the time that this post card was taken to the first defendant's residence on the 4th, he had left for the Court and on non-delivery at home it was transferred for delivery at the other division but when it was taken to Court on the 5th, the first defendant is said to have been absent from the Court. On the 6th and 7th he was admittedly in Bezwada after hearing of his father's death and as the 8th was a Sunday the registered post card was delivered to him only on the 9th.

On the above facts it has been argued on behalf of the appellant that as communication to the other coparceners is necessary before a member of a joint Hindu family can become divided by a declaration of his intention to become so divided, it must be held in this case that the division in status arose only on the 9th August when the first defendant received Ex. J and as the testator had died on the 5th August the testament cannot take effect so far as the joint family property is concerned. We are unable to accede to this contention. It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners. The anomalous results following from any such view can easily be shown. It would be unfortunate indeed if the validity of a will should depend upon the accident as to whether a postman was able to find an addressee on a particular date or at a particular place or not; and it will sometimes be a very difficult task for the Court to decide how far the addressee had with some knowledge of what is coming evaded receipt of the notice. An illustration will forcibly demonstrate the anomalous position. If a person should have a number of coparceners living in a number of places far remote from one another what is to be the date of division of status when notice had been sent by one of the coparceners to those various other coparceners. It certainly cannot be that he will become divided from the family on different dates; and here again the uncertainty that may arise from the delay in delivery due to voidable or unavoidable causes is a fact to be taken into account. It may be that if the law is authoritatively settled, it is not open to us to refuse to give effect to it merely on the ground that it may lead to anomalous consequences; but when the law has not been so stated in any decision of authority and such a view is not necessitated or justified by the reason of the rule, we see no reason to interpret the reference to “communication” in the various cases as implying that the severance does not arise until notice has actually been received by the addressee or addressees.

The only reported decision in which the question of the date of severance was discussed is a judgment of Madhavan Nair J. in Rama Ayyar v. Meenakshi Ammal(1). So far as it goes, it is an authority against the appellant's contention, because, the learned Judge held that even if it should be assumed that the receipt of the notice by the other coparceners is material, the severance of status relates back to the date when the communication was sent. As pointed out by the learned Judge, the principle emphatically stated by the Privy Council that the other coparceners have no choice or option in the matter clearly indicates that the date of the receipt of the notice by them cannot be material. This decision of Madhavan Nair J. was sought to be distinguished by the appellant's learned Counsel on the ground that in that case the testator lived till after the date of the service of the notice. In view of the basis of the decision, we do not see how that can make any difference. It was urged that if on the 5th the estate passed by survivorship to the first defendant, the receipt of the notice on the 9th cannot divorce the first defendant of the estate so vested in him. The answer is that the issue of the notice is, so far as the testator is concerned, sufficient to prevent the operation of the principle of survivorship. He was certainly justified in expecting that in the ordinary course his notice would have been delivered to the first defendant on the 4th or at least on the 5th. It is unnecessary for us to say what the legal result would be in a case where a notice is posted in circumstances when it will be obviously impossible for it to reach the addressee before the testator's death. It may be possible to argue that this is merely a device to defeat the law, but no such suggestion can be made in the circumstances of this Case. The appeal fails and is dismissed with costs.

Appeal dismissed.

N.R.R