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MANU/WB/0172/1981 Equivalent Citation: (1982)26CTR(Cal)17, [1982]137ITR72(Cal) IN THE HIGH COURT OF CALCUTTA Matter No. 389 of 1976 Decided On: 08.07.1981 Appellants: Commissioner of Gift Tax, Central-I Vs. Respondent: Basant Kumar Aditya Vikram Birla Hon'ble Judges/Coram: Sabyasachi Mukharji and Sudhindra Mohan Guha, JJ. Counsels: For Appellant/Petitioner/Plaintiff: B.K. Bagchi and B.K. Naha, Advs. For Respondents/Defendant: R.N. Bajoria, S.K. Bagaria and A.K. Dey, Advs. Subject: Direct Taxation Catch Words Mentioned IN Acts/Rules/Orders: Gift Tax Act, 1958 - Section 2 Cases Referred: Rajagopala Ayyar v. Venkataraman, [1947] 51 CWN 829, AIR 1947 PC 122; Ramchandra v. Seeniathal, ILR [1955] Mad 732; Subbayya v. Ananta Ramayya, [1930] ILR 53 Mad 84; Jairam v. Nathu, [1906] ILR 31 Bom 54; Sundrabai v. Shivnarayana, 1908] ILR 32 Bom 81; Vaikundam v. Kallapiran, [1900] ILR 23 Mad 512; Sadhu Laxmi Sundaramma v. Suryanarayana, AIR 1950 Mad 274; Ramalinga Annavi v. Narayana Annavi, [1922] ILR 45 Mad 489 (PC), [1922] LR 49 IA 168; Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa, AIR 1964 SC 510; V.D. Deshpande v. K.D. Kulkarni, AIR 1978 SC 1791; Anthonyswamy v. M.R. Chinnaswamy Koundan, AIR 1970 SC 223; Devchand C. Shah v. Commissioner of Expenditure-tax, [1970] 78 ITR 534; Thiruvathammal v. Vagunathan, AIR 1952 Mad 479; CGT v. Tej Nath, [1972] 86 ITR 96; CIT v. Ramgopal Rajgarhia, [1980] 123 ITR 693 (Pat); Keshub Mahindra v. CGT, [1968] 70 ITR 1 (Bom); P.J.P. Thomas v. CIT, [1962] 44 ITR 897 (Cal); CGT v. N.S. Getti Chettiar, [1971] 82 ITR 599; M.S.M. Ratnaswami Nadar v. CIT, [1975] 100 ITR 669; CGT v. Chandrasekhara Reddy, [1976] 105 ITR 849; CGT v. RM.S. Ramanathan Chettiar, [1969] 74 ITR 758 (Mad); Alagammai Achi v. Veerappa Chettiar, AIR 1956 Mad 428; Narayana v. Ramalinga, [1916] ILR 39 Mad 587 Case Note: Direct Taxation gift Section 2 of Gift Tax Act, 1958 whether Tribunal right in holding that jewellery and cash given by assessee to daughter of 'karta' of Hindu undivided family (HUF) at time of marriage did not fall within ambit of term 'gift' as defined in Section 2 (xii) unmarried daughter of HUF has right to bewww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 1/79

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married out of joint family expenses so there could not be gift Tribunal right in concluding that provisions of Section 2 (xii) not attracted question answered in affirmative.

JUDGMENT Sabyasachi Mukharji, J. 1. This reference under Section 26(1) of the G.T. Act, 1958, poses the following question :"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that jewellery, cash and fridge of the value of Rs. 67,744 given by the assessee to Smt. Jayasree Mohta, at the time of her marriage, did not fall within the ambit of the term "gift" as defined in Section 2(xii) of the Gift-tax Act, 1958 ? "

2. The assessee is an HUF. The proceedings out of which this reference arises relates to the gift-tax assessment for the assessment year 1970-71. The gift made by the assessee-HUF during the previous year included the following amounts given to Smt. Jayashree Mohta, daughter of Sri B.K. Birla, karta of the assessee-family, at the time of her marriage. Those were as follows :

Rs.

"Jewellery worth

47,000

C ash

11,000

Fridge

9,744

67,744"

3. The assessee disclosed the value of all the gifts amounting to Rs. 1,33,744 which included this gift of Rs. 67,744. This amount of Rs. 67,744 was claimed as exempt on the ground that these were marriage expenses. The ITO disallowed the claim of the assessee. 4. Being aggrieved by the order of the ITO, the assessee went up in appeal before the AAC. It was contended on behalf of the assessee that an unmarried daughter was entitled to have her marriage expenses met by the HUF and, therefore, there was no question of any gift whatever in the HUF spending these amounts on her marriage. The AAC was of the view that there was no obligation on the HUF to spend on the marriage of the daughter as the daughter was not solely dependent on the HUF. He observed that the marriage expenses were met not by the HUF but by the karta or parents from their individual accounts. The AAC, therefore, upheld the order of the ITO. 5. The assessee went up in appeal before the Tribunal. It was urged before the Tribunal that there was an obligation on the HUF to perform the marriage of the daughters of the family and the amounts spent in the marriage in discharge of this obligation could not amount to a gift, as it would not amount to transfer without consideration. Reliance in this connection was placed on several passages in Mulla's Hindu Law as well as on the decision of the Judicial Committee in the case of Rajagopala Ayyar v. Venkataraman [1947] 51 CWN 829 AIR 1947 PC 122 and relying on this decision, the Tribunal was of the view that the assessee was under a legal obligation to give in marriage Smt. Jayashree Mohta and the expenditure incurred therein amounted to legitimate marriage expenses on Smt. Jayashreewww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 2/79

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Mohta. The Tribunal further held that the amounts in dispute did not fall within the ambit of the word "gift" as defined in Section 2(xii) of the G.T. Act, 1958. Therefore, the Tribunal directed the exclusion of Rs. 67,744 from the computation of the value of the gift. Upon these facts, the question, as indicated above, has been referred to this court. 6. It must be mentioned that there is no dispute that the amount was spent by the HUF. It was also not in dispute that Smt. Jayashree Mohta was a member of the said HUF and on the marriage of an unmarried daughter of the said HUF the amount was spent. The Tribunal found that the amount spent was not out of proportion or was not in excess of the estate of the family. The Tribunal also proceeded on the basis that the expenditure incurred was the legitimate marriage expenses of Smt. Jayashree Mohta. The question is, in these circumstances, can it be said to be a case of gift in terms of Section 2(xii) of the G.T. Act, 1958. The position of a daughter to have her marriage expenses met out of the joint HUF is clear in the exposition of law in Mulla's Hindu Law and we may refer to the observations in Mulla's Hindu Law, 14th Edn., where at p. 395, under art. 304(2), dealing with the property available for partition, it states :" (2) Marriage expenses, etc., after a suit for partition.--As to the marriage expenses of male members of the family it has been held by the Judicial Committee (Ramalinga v. Narayana [1922] LR 49 IA 168) reversing a decision of the Madras High Court (Narayana v. Ramalinga ILR [1916] Mad 587 36 IC 428), that since the institution of a suit for partition by a member of a joint family effects a severance of the joint status of the family, a male member of the family who is then unmarried is not entitled to have a provision made on partition for his marriage expenses, although he marries before the decree in the suit is made. The case, however, of an unmarried daughter stands on a different footing. Her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition ; provision should accordingly be made for her marriage expenses in the decree (Rajagopala Ayyar v. Venkataraman [1947] 51 CWN 829). It is only for the marriage expenses of the father's daughters or sisters that provision should be made out of the joint family property. The marriage expenses of the son's daughters form only the liability of his branch and not of the whole joint family unlike the case of the father's daughters (Ramchandra v. Seeniathal ILR [1955] Mad 732). Thus, if A has a son S and a daughter D by one wife, and a son S2 and a daughter D2 by another wife, and S brings a suit for partition, and D2 is married after the institution of the suit, one-third of her marriage expenses should be deducted out of his one-third share and as regards one-third of the marriage expenses of D his one-third share in the property may be charged with such expenses. But S is not liable for the marriage expenses of his brother's (S2's) daughter, if any, she being the daughter of a collateral. Her marriage expenses should come out of her own father's share (Subbayya v. Ananta Ramayya ILR[1930] Mad 84). The same rule applies to the expenses of betrothal ceremonies of daughters. As regards the expenses of the thread ceremony of the members of the family it has been held that provision should be made for them on partition (Jairam v. Nathu ILR[1906] Bom 54). As to marriage expenses while the family is joint, see Article 440 below."

7. As mentioned hereinbefore, the aforesaid observations deal with the marriage expenses at the time of partition or after a partition suit had been filed. But Article 440 at p. 518 of the said book deals with marriage expenses when the family is joint and it will be instructive to refer to the said exposition in Mulla's Hindu Law which states as follows :" 440. Marriage expenses.--In the case of a joint family governed by the Mitakshara law, the joint family property is liable, while the family is still joint, for the legitimate marriage expenses of male members of the family Sundrabai v. Shivnarayana ILR(1908] Bom 81) and also of the daughters of male members of the family (Vaikundam v. Kallapiran ilr [1900] Mad 512). The decision in Subbayya v. Anantha Ramayya ilr [1930] Mad 84 implies that a father in possession of a joint family property is under a legal obligation to get his daughter married. It follows that if a father so in possession neglects his duty, the mother may perform it and recover the expenses from her husband. When there is no joint family property in the hands of the father there is no legal obligation on his part to marry his daughter and bear the expenses of marriage. It is doubtful also whether thewww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 3/79

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marriage of an infant girl could be brought under the head of 'necessaries' within the meaning of Section 68, Indian Contract Act (Sadhu Laxmi Sundaramma v. Suryanarayana, MANU/TN/0119/1950 : AIR1950Mad274 . On the other hand, the proposition of law laid down in Sundari Ammal v. Subramania Ayyar ILR[1902) Mad 505 that under the Hindu Law, a father is under no legal obligation to get his daughter married appears to have been stated too broadly. The obligation may not exist when the father is not a member of a joint family and has no ancestral property. The texts enjoin the payment of expenses of sanskaras or sacraments out of the family property. The marriage is a sanskara and its expenses, therefore, are to be provided for out of the joint family property. A debt contracted for the marriage of a coparcener or the daughter of a deceased coparcener in a joint Hindu family is a debt contracted for a family purpose and, therefore, for the benefit of the family. See arts. 224 and 427. As to expenses of marriage after the institution of a suit for partition, see Article 304(2). As to the power of a widow to provide for the marriage expenses of her daughter out of her husband's estate, see Article 181B(iv)."

8. In this connection, it may not be inappropriate to refer to the observations of the Madras High Court in the decision mentioned hereinbefore, that is to say, the observations of the court in the case of Subbayya v. Atlanta Ramayya ILR [1930] Mad 84 . It was observed that in a suit for partition, instituted by a Hindu governed by the Mitakshara law, against his father and his step-brother, the father claimed a provision for the marriage expenses of his daughters, one of whom was married subsequent to the suit and before the decree and two others Were unmarried, and the plaintiff had contended that he or his share in the family property was not liable therefore after the disruption of the coparcenary. Mr. Justice Ramesam and Mr. Justice Reilly held that the right of the daughter to her marriage expenses and maintenance was based on her right to or interest in the joint family property and was not based on the natural obligation of a father to maintain his children. Under this, according to their Lordships, the obligation of the family property was not affected by the partition between the father and his sons, but the son's share, on partition, was liable for the marriage expenses of the daughter of the father in proportion to the son's share in the property divided, and, on the other hand, for the marriage expenses of the daughter of the son, if any, the share of the father or of a collateral after partition was not liable and consequently the plaintiff should pay his father his one-third share of the sister's marriage expenses incurred after suit and his one-third share in the property should be charged with onethird of the expenses of the marriages of his unmarried sister. There, the majority of the learned judges explained the full implication of the observation in the case of Ramalinga Annavi v. Narayana Annavi ILR [1922] Mad 489 . The position, therefore, follows that the legitimate marriage expenses of the daughters of the joint HUF will have to be met out of the joint HUF provided the family has the fund. If that is a right given to the daughter belonging to the joint Hindu family then the payment of money in discharge of that right by the karta can by no stretch of imagination be described as either a transfer or gift in terms of Section 2(xii) of the G.T. Act. We will, however, come to the actual definition in the section immediately. In this connection, it would be appropriate to refer to the observations of Mulls, appearing at p. 302 under Article 243 of the same book which deals with alienation of property in case of legal necessity and Clause (c) of Article 243 deals with marriage expenses of male coparceners and also of the daughters of the coparceners. Therefore, it again re-emphasises the point that marriage of daughters of the coparceners, that is to say, the unmarried daughter of the members of the joint HUF, if there be alienation on the occasion of marriage, would be alienation for the legal necessity and would be a valid alienation of the property under the Hindu law. We may also refer, in this connection, to the observations appearing at p. 425 under art. 333 where it dealt with a suit for partition, parties to the suit and what property it should comprise. Reliance was placed on the observations of the Supreme Court in the case of Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa, MANU/SC/0252/1963 : [1964]4SCR497 . There, several questions came up for consideration before the Supreme Court. The questions were when there could be a valid adoption, under what circumstances the manager of a joint Hindu family had power of alienation, the right of alienation of the manager and gift to a stranger. But one of the main questions that came up for consideration was the right of the father to alienate the property to make a gift in favour of the daughter or sister by way of a reasonable provision for her maintenance. There, the Supreme Court dealt with the position under the Hindu law and referred to verses 27, 28 and 29 in Chap. I of the Mitakshara law which described the limitation placed on a father in making a gift of an ancestral estate. The Supreme Court thereafter observed that they did not expressly deal with the right of a father to make a provision for his daughter by giving her some family property at the time of her marriage or subsequently. That right, according to the Supreme Court, was definedwww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 4/79

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separately by Hindu law texts and evolved by a long catena of decisions based on the said texts. Then, the Supreme Court referred to the relevant decisions in para. 16 of the said judgment at pp. 517-518 of the report. The Supreme Court thereafter went on to observe that it was manifest that except the decision of a learned single judge of the Bombay High Court, all the decisions, according to the Supreme Court, on the subject, recognised the validity of a gift to a reasonable extent of a joint family property to a daughter under varying circumstances. The Supreme Court thereupon at para. 18 at p. 519 of the report observed as follows :"18. The legal position may be summarised thus : The Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallised into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a moral obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift to a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one cannot make the gift any the less a valid one."

9. Learned advocate for the revenue, basing on the aforesaid observations of the Supreme Court, sought to urge that originally the texts gave the daughter or sister a share in the joint Hindu family property but that right was gradually lost and it became thereafter a moral right to maintain the daughter according to the financial and relevant circumstances of the family. It was sought, therefore, to be urged on behalf of the revenue that though there might be some moral obligations on the karta of the joint Hindu family to incur certain expenses or give a daughter of the family in marriage, there was no legal right for the daughter to obtain marriage expenses nor was there any legal obligation on the karta to incur such expenses. We are, however, unable to accept this position. As we have noted, the Supreme Court, in the text quoted in the aforesaid decision, observed : How patent the obligation of the joint Hindu family was to get the daughter of the family married in the manner commensurate with the family status and it is well settled in Hindu law that wherever the laws of India admit the operation of a personal law, the rights and obligations of a Hindu are determined by the Hindu law, in its traditional law. The law as understood by the Hindus, is a branch of dharma. Its ancient framework is the law of the Smritis. This position is amply clarified in the introduction to Mulla's Hindu Law, as referred to hereinbefore. 10. As a matter of fact, this traditional concept of Hindu law has not only not been altered but has been recognised by the Hindu Adoptions and Maintenance Act, 1956, which, inter alia, defines "maintenance" under Sub-section (3)(b) as "in the case of unmarried daughter, also the reasonable expenses of and incidental to her marriage ". The said statutory law imposes upon the karta or the father, as the case may be, the obligation of maintaining the daughter which as we have mentioned hereinbefore includes the obligation to incur expenses on the occasion of the marriage. This position was further clarified by the subsequent judgment in the case of V.D. Deshpande v. K.D. Kulkarni, MANU/SC/0409/1978 : [1979]1SCR955 , where it was observed that where a father was the karta of a joint Hindu family and the debts were contracted by the father in his capacity as manager and head of the family for family purposes, the sons as members of the joint family were bound to pay the debts to the extent of their interest in the coparcenary property. It was further observed that as the loan was borrowed for the purpose improving joint family lands, the loan would ipso facto be for legal necessity. It was observed at para. 7 referring to Mulla's Hindu law as follows (at p. 1794) :"Where a father is the karta of a joint Hindu family and the debts are contracted by the father in his capacity as manager and head of the family for family purposes, the sons as members of the joint familywww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 5/79

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are bound to pay the debts to the extent of their interest in the coparcenary property. Further, where the sons are joint with their father and the debts have been contracted by the father for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for illegal or immoral purposes. This liability arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara law to discharge the father's debts, where the debts are not tainted with immorality. This liability of the sons to pay the father's debts exists whether the father be alive or dead (para. 290, Mulla's Hindu Law, 14th Edn., p. 354). A further requirement is that for an effective partition of a Mitakshara joint Hindu family a provision for the joint family debts should be made. In order to determine what property is available for partition, provision must first be made for joint family debts which are payable out of the joint family property, personal debts of the father not tainted with immorality, maintenance of dependent female members and of disqualified heirs, and for the marriage expenses of unmarried daughters. This must be so because partition is of joint family property and if joint family debts are repaid before the partition only the residue would be available for partition. Therefore, if partition is effected before paying the debts, provision to pay the debts should be made so as to determine the residue available for partition."

11. Therefore, the marriage of dependent family members and on such occasion incurring legitimate expenses were recognised in the aforesaid passage referred to hereinbefore. At paras. 14 and 14A at pp. 1796 and 3 797, the Supreme Court reiterated this position and referred to the previous decision of the Supreme Court in the case of Anthonyswamy v. M.R. Chinnaswamy Koundan, MANU/SC/0283/1969 : [1970]2SCR648 . At p. 1801 of the report AIR 1978 SC the Supreme Court noted that in Hindu law two seemingly contrary but really complementary principles are there, one the principle of independent coparcenary rights in the sons which was an incident of birth, giving to the sons a vested right in the coparcenary property and the other the pious duty of the sons to discharge their father's debts not tainted with immorality or illegality, which laid open the whole estate to be seized for the payment of such debts. One of the pious obligations of the joint Hindu family in which there is an unmarried daughter is to get the daughter married and to incur legitimate expenses for such occasion. Such pious obligation, a concept of the Hindu law, has not only not been modified but strengthened by the subsequent legislation as we have mentioned hereinbefore. Reference in this connection may also be made to the decision of the Mysore High Court in the case of Devchand C. Shah v. Commissioner of Expenditure-tax MANU/KA/0043/1966 : [1970]78ITR534(KAR) , where the Division Bench of the Mysore High Court observed that the expenses for the marriage of a daughter of a Hindu family were a legitimate charge on the family estate. In the case of Rajagopala Ayyar v. Venkataraman [1941] 51 CWN 829 , the Judicial Committee observed that the right of an unmarried daughter to maintenance and marriage expenses out of the Hindu joint family property was in lieu of a share on partition. Provisions should accordingly be made for her in a decree for partition. It was further observed that when the marriage oi an unmarried daughter had already taken place with the money supplied by her mother there was no ground for refusing reimbursement. Therefore, both the legal as well as the moral obligation of a joint family to incur expenses on the occasion of the marriage of an unmarried daughter is recognised in Hindu law as enunciated by the aforesaid decision of the Supreme Court. The same position would more or less be apparent if we refer to the observations of the learned single judge of the Madras High Court in the case of Thiruvathammal v. Vagunathan, MANU/TN/0199/1952 : AIR1952Mad479 . There the learned judge observed that the father had a legal obligation to meet the marriage expenses of his daughter if it was. shown that there was a joint family property, but if there was no joint family property, the learned judge observed, the obligation of the father was only a moral or natural obligation but not a legal obligation. 12. Our attention was, however, drawn on behalf of the revenue to certain observations in the case of CGT v. Tej Nath MANU/PH/0258/1971, where the Full Bench of the Punjab and Haryana High Court observed that a gift by the karta of an HUF of any portion of the family property, whether to other coparceners or to strangers, was void per se and not merely voidable and, therefore, there would be no gift within the meaning of the G.T. Act, which would be liable to gift-tax. There, however, the court was not dealing with a gift on the occasion of a marriage. Mr. Justice D. K. Mahajan observed at p. 104 of the report that in the instant case before their Lordships the gift to the daughter was not made at or about the time of her marriage. Therefore, whether a gift on other occasions would be a valid gift or would be liable to attract the provisions of the G.T. Act or not is not a question with which we are concerned. 13. Reliance was also placed on certain observations in the case of CIT v. Ramgopal Rajgarhia MANU/BH/0080/1979 : [1980]123ITR693(Patna) where it was observed that a Hindu father or other managing member had power to make a gift within reasonable limits of ancestral immovable property for " pious purposes ". Inwww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 6/79

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case of movable property such a gift need not be made for pious purposes. It could be made out of love and affection. There the court was concerned with a different situation, namely, a gift made to a son and the question was whether such a gift was within reasonable limits. We are not concerned with the same situation in the instant case. 14. Learned advocate for the revenue, however, seriously contended that even if it was not a gift under the Transfer of Property Act it was a gift in view of the language used in Section 2(xii) of the G.T. Act, 1958. In Section 2(xii) of the Act "gift" has been defind as follows:"2. (xii) 'Gift' means the transfer by one person to another of any existing movable or immovable property made voluntarily find without consideration in money or money's worth and includes the transfer or conversion of any property referred to in Section 4, deemed to be gift under that section."

15. He contended that this was without consideration as there was no obligation. Secondly, he contended that it was not in money or money's worth. It is common case and no contention was urged before us that the amount could be considered to be a deemed gift under Section 4 of the Act. So, we need not consider the implication of Section 4 of the Act. We are, however, unable to accept the contention urged. As we have mentioned before, there was really no question of any gift or transfer because a daughter had a right so long as the family remained joint and had properties to have her marriage expenses met out of the family fund. The karta was meeting that obligation of the family to the daughter. Therefore, there was no question of anybody transferring any amount really or making any gift in the strict sense of the term. The daughter had the right under the law to have her marriage expenses met. In this connection, as some authorities were cited, we will briefly note the same. Our attention was drawn to the case of Keshub Mahindra v. CGT MANU/MH/0040/1968 : [1968]70ITR1(Bom) , the meaning of the expression " consideration in money or money's worth " was explained. What had happened in that case was that the payment was made in discharge of a legal obligation and payment was out of the fund to which the daughter had a share to be reimbursed. This decision is relevant for our present purpose. Reliance was also placed on the observations in the case of P.J. P. Thomas v. CIT MANU/WB/0255/1961 : [1962]44ITR897(Cal) , where it was held that though marriage might be a good and valuable consideration for transfer of property to a lady who agreed to marry the transferor, since it was not possible to determine the adequacy of such consideration, the marriage could not be regarded as an adequate consideration within the meaning of Section 16(3)(a)(iii) of the Indian I.T. Act, 1922. These observations, in our opinion, were made entirely in a different context and have no relevance to the present case. 16. Similarly, our attention was drawn to the observations of the Supreme Court in the case of CGT v. N.S. Getti Chettiar MANU/SC/0249/1971 : [1971]82ITR599(SC) , where it was held that partition of a property would not amount to a gift. Learned advocate for the revenue is absolutely right. But in this case there was no question of partition and the principle behind that decision of the Supreme Court was as to what a co-sharer was getting in lieu of his share and there was no question of any transfer by anybody to anybody, else. That principle, in our opinion, would be against the contentions of the revenue. Reliance was also placed on certain observations in the case of M.S.M. Ratnaswami Nadar v. CIT MANU/TN/0332/1973 : [1975]100ITR669(Mad) . There also the Madras High Court was dealing with the adequacy of the consideration under Section 64(iii) of the I.T. Act, 1961, which was similar to Section 16(3)(a)(iv) of the Indian I.T. Act, 1922. We are not concerned with the said controversy in the Instant case. Reliance was also placed on certain observations in the case of CGT v. Chandrasekhara Reddy MANU/AP/0174/1976 : [1976]105ITR849(AP) where the Andhra Pradesh High Court observed that a gift by a father or mother or other guardian in discharge of a moral obligation would not attract the provisions of the G.T. Act. 17. Learned advocate for the assessee also drew our attention to the observations in the case of CGT v. RM.S. Ramanathan Chettiar MANU/TN/0292/1969 : [1969]74ITR758(Mad) , where it was held that the expression " money's worth " in Section 2(xii) of the G.T. Act, 1958, had a wide connotation and was not necessarily to be understood in the strict context of money in specie but that which would eventually or in the ultimate analysis or result be reduced to or converted into money. There, in a partial partition of the family, provision was made for the payment of an amount to the wife of the karta. It was held that such consideration was money's worth and the payment was not a gift. As we have held, being an unmarried daughter of the Hindu family, the daughter has a right to be married out of the joint family expenses, there cannot be any gift. This only strengthens that conclusion and this conclusion is also corroborated by the Madras High Court in the case of Alagammai Achi v. Veerappa Chettiar, AIR 1956 Mad 428.www.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 7/79

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18. In the aforesaid view of the matter, we are of the opinion that the Tribunal was right in its conclusion that the provisions of Section 2(xii) were not attracted and the question must, therefore, be answered in the affirmative and in favour of the assessee. 19. In the facts and circumstances of the case, there will be no order as to costs. Sudhindra Mohan Guha, J. 20. I agree. Manupatra Information Solutions Pvt. Ltd.

MANU/AP/0634/2001 Equivalent Citation: 2001(6)ALD143, 2001(2)AnWR664 IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD A.S. No. 3025 of 1982 and Transferred A.S. Nos. 3519, 3520 and 3521 of 1985 Decided On: 13.03.2001 Appellants: Veeramallayyagari V. Sitaram Vs. Respondent: Payala Chandrasekhar, Minor Guardian Payala Siddaiah and Ors. Hon'ble Judges/Coram: V.V.S. Rao, J. Counsels: For Appellant/Petitioner/Plaintiff: K.V. Reddy, Adv. For Respondents/Defendant: K.F. Baba, R. Vijayanandan Reddy, R. Venugopal Reddy and R. Vijayanandan Reddy, Advs. Subject: Family Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Hindu Law ;Code of Civil Procedure, 1908 - Order 6 Rule 4; Hindu Succession Act ;Indian Succession Act, 1925 Section 30, Indian Succession Act, 1925 - Section 59, Indian Succession Act, 1925 - Section 63; Indian Evidence Act, 1872 - Section 67, Indian Evidence Act, 1872 - Section 68; Indian Contract Act - Section 25 Cases Referred: Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189; Bhagwati Prasad v. Rameshwari Kuer, AIR 1952 SC 72; Bharat Dharma Syndicate v. Harish Chandra, AIR 1937 PC 146; Bhishundeo v. Seogeni Rai, AIR 1951 SC 280; H. Venkatachala v. B.N. Thimmajamma, AIR 1959 SC 443; Indu Bala v. Manindra Chandra, AIR 1982 SC 133; Kalyan Singh v. Chotti, AIR 1990 SC 396; Mudigowda v. Ramachandra, AIR 1969 SC 1076; Narayanan v.www.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 8/79

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Official Assignee, Rangoon, AIR 1941 PC 93; Purnima Devi v. Khagendra Narayan, AIR 1962 SC 567; Raghavamma v. Chenchamma, AIR 1964 SC 136; Raj Kumar Deen v. A.S. Din, 1996 (4) ALD 651; Ramchandra v. Champabai, AIR 1965 SC 354; S. Udayabhaskara Rao v. V.V. Kanaka Durga Rao, 1955 (2) ALT 534; Scot v. United States, (1870) 79 US 577, 20 Law Ed. 438; Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529; Subbayya v. Sitaramamma, 1958 (2) An. WR 59; V.S. Mane v. R.V. Ganeshkar, AIR 1995 SC 2086; V.S. Vishwavidyalaya v. Rajkishore, AIR 1977 SC 615 Case Note: (i) Family - status of ancestral property - Hindu male inherited property from ancestors property to be considered as joint family property subsequently born sons and grandsons having equal shares in inherited property - interest of son is independent of father - held, property is co-parcenary property liable to be divided.

(ii) Validity of will - validity of will challenged on grounds of fraud burden of proof is on person who challenges will test of satisfaction of judicial conscience needs to be satisfied - registration of will not sufficient to establish validity of will - held, will can not be treated as last testament of deceased and cannot be given effect to.

JUDGMENT 1. In the Appeal Suit as well as Transferred Appeal suits, the appellants are aggrieved by the common judgment and the decrees dated 11.11.1981 in four different suits. It is convenient to dispose of all the four appeals by this common Judgment. 2. A.S.No.3025 of 1982 (which may be treated as main appeal) arises against the Judgment and decree in O.S.No.1 of 1977 (which is the main suit) on the file of the Court of Subordinate Judge, Madanapalle and Tr. Appeal Nos.3519, 3520 and 3521 of 1985 arise against O.S.Nos.32 of 1978, 30 of 1978 and 32 of 1978 respectively on the file of the said Court. All the four suits are concerned with all or some of the items of the properties owned by one Payala Kondappa (also described as kondaiah) of Somula village near Madanapalle, Chittoor district. The items of properties include dry lands, wet lands as well as house site. Alt the parties in all the suits are closely related either by birth in the same family or by marriage. During the pendency of the suits. Kondappa died. His second wife Mallamma who is the first plaintiff in the main suit also died. The death of these two has given scope to the learned counsel for the parties to raise new grounds which were not pleaded, proved or raised before the trial Court properly nor raised in these appeals. 3. Be that as it may, before noticing the pleadings, it is convenient to notice the relationship of the parties. One Payala Kondaiah had some agricultural properties viz. coconut, mango, lemon and beetle leaf plantations in Somula village. He had two sons - Payala Kondappa and Payala Siddappa. The brothers lived jointly and even jointly purchased some properties after the death of their father. Kondappa married one Atcliamma and through her he had a daughter by name Parvatamma. After the death of Atcliamma, Kondappa married Mallamma and through Mallamma he begot Chandrasekhar and Reddemma. The marriages of the daughters - Parvatamma and Reddemma - were performed. Reddemma was given in marriage to one Veeramallaiahgari Sitaram. The younger brother of Kondappa viz., Siddappa had two sons by name Sitaramaiali and Kodandaramaiah. Payala Mallamma and her son Chandrasekhar filed suit for partition being O.S.No.1 of 1977 adding Kondappa (Dl). Sitaram (D2). Seetharamaiah (D3). Kodandaramaiah (D4), Parvatamma (D5) and Reddemma (D6). Sitaram filed a suit being O.S.No.757 of 1976 on the file of the Principal District Munsif, Punganur which was later transferred and numbered as O.S.No.103 of 1978 on the file of the Subordinate Judge's Court, Madanapalle. This suit is for perpetual injunction restraining Kondappa from interfering with the possession of the lands, which were allegedly demised to Sitaram under a registered lease deed dated 29.3.1976. The third suit 0 S.No 30 of 1978 by Kondappawww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 9/79

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against Sitaram and his brother Krishnamurthy is for cancellation of the lease deed made in respect of items 3 to 10 of the suit schedule properties and a sale deed dated 27-3-1976 in respect of item No.2 which is a house site, on the ground of fraud and misrepresentation. The fourth suit i.e. O.S.No.32 of 1980 is filed by Reddemma, the daughter of Kondappa through his second wife for partition of 1/6th share in all the properties left behind by Kondappa. 4. The parties shall be referred to as they are arrayed in O.S No 1 of 1977. In A.S.No.3025 of 1982, Tr.A.S.Nos.3520 of 1985 and 3521 of 1985. Sitaram is the appellant who is the second defendant in O.S. No.1 of 1977. Whereas Reddemma sixth defendant in O.S No.1 of 1977 filed Tr.A.S.No.3519 of 1985. Pleadings in A.S.No.3025 of 1982: 5. In the suit O.S.No.1 of 1977 Mallamma, the plaintiff and minor plaintiff. Chandrasekhar pleaded as follows. The plaint schedule properties, items 3 to 9 (agricultural properties) item No 1 (house) item 2 (house site admeasuring 4 1/2 cts.) are joint and undivided properties of Kondappa, the first defendant. The first defendant had two sons Reddeppa and Chandrasekhar and one daughter Reddemma. The first son Reddeppa died when he was 19 years and as per Hindu Succession Act all the properties that may have fallen to the share of Reddeppa devolved to his mother, the first plaintiff. As such, the first plaintiff and the first defendant who are enjoying the properties of the latter are entitled to 1/3rd share each because they are ancestral and joint family properties and acquired by the first defendant out of ancestral properties. The first defendant became disabled and the first plaintiff is supervising the affairs of the family including cultivation. Kondappa installed oil engine to the well in the agricultural lands and cultivating paddy. Taking advantage of misunderstandings between the first plaintiff and the first defendant, the second defendant who is the husband of the sixth defendant instigated the first defendant to keep the family jewellery and cash with the second defendant. As the second plaintiff is a minor and the first plaintiff is a woman, defendants 1 and 2 colluded with each other. The first defendant without there being any legal necessity executed a lease deed in respect of the plaint schedule properties in favour of the second defendant for a lease amount of Rs.5,000/- per year though the properties will yield more than Rs.5,000 or Rs.6,000/- per annum. The lease deed is not intended to be acted upon, that it was not acted upon and in any event the same is not binding on the plaintiffs. As the action of the first defendant is adverse to the interest of the plaintiffs, they filed the suit for partition. During the pendency of the suit, the first plaintiff died and Siddappa the younger brother of the deceased Kondappa was appointed as guardian of the minor second plaintiff as per the order dated 9-11-1979 in I.A.No.778 of 1979. Kondappa also died on 24-111979. therefore, an amendment was sought and ordered in the plaint to the effect that after the death of Mallamma and Kondappa, the minor plaintiff is entitled to 11/18th share whereas sixth defendant is entitled to 5/18th share and Parvatamma 2/ 18th share. Defendants 2 and 3 were made parties as Kondappa allegedly executed a will dated 1311-1979 bequeathing his share in the property to the second plaintiff and defendants 3 and 4 equally. 6. The first defendant (Kondappa) filed a written statement. He denied any collusion with the second defendant. He further stated that while he was in an unsound state of mind, the second defendant fraudulently got the lease deed executed exerting undue influence, that the consideration for the lease is disproportionate when compared with the minimum yield from the agricultural land which is Rs.10,000/-, that he has not delivered possession of the lands to the second defendant and that he has no objection for partition of suit schedule property giving 2/third share to the plaintiffs. 7. The second defendant who is the husband of sixth defendant filed a written statement as follows. The plaintiffs and the first defendant are members of Hindu joint family. The first defendant himself was managing the joint family properties. The first plaintiff is not looking after the affairs and she never managed the plaint schedule property which include agricultural land, coconut, mango, lemon and beetle leaves gardens and soap nut bushes. There are misunderstandings between the plaintiff's and the first defendant. The first defendant as manager of the joint family, for legal necessities leased out items 3 to 9 of plaint schedule property by a registered lease deed dated 2-3-1975 to him for ten years at the rate of Rs.5.000/- per year and put him in possession on the same day. Since then he is in continuous possession of items 3 to 9 of plaint schedule property and raising crops thereon. The first defendant in collusion with the first plaintiff tried to interfere with the peaceful possession of the land and therefore, he filed O.S.No.757 of 1976 on the file of the Court of the District Munsif. Punganur for perpetual injunction and the said Court granted interim injunction in I.A.No.818 of 1976. Therefore, the first defendant in collusion with the plaintiffs got O.S.No.1 of 1977 filed for partition. It is not correct to say that the lands will fetch more than Rs.6.000/- perwww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 10/79

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year. The plaintiffs are aware of the lease deed executed by the first defendant in favour of the second defendant as there is a sale deed in respect of item No.2 and hence they are estopped from questioning the lease deed and the sale deed. The plaintiffs never raised any crops after execution of lease deed in favour of the first defendant and the first defendant acted upon lease deed and sale deed by putting the second defendant in possession The first defendant executed sale deed on 27-3-1976 for proper and valid consideration and put the second defendant in possession of the property. The plaintiffs are not entitled to question the same as the sale deed is binding on them The second defendant is not concerned with the division and partition of the property which is between the plaintiffs and the first defendant. The second defendant also filed additional written statement on 8-9-1980 inter alia stating that defendants 3 and 4 are not necessary and proper parties to the suit, that they have no right interest or title in the suit property that defendants 3 and 4 are the sons of the guardian and next friend of the minor plaintiff at whose instance defendants 3 and 4 are made parties that the next friend of minor plaintiff has got adverse interest against the minor second plaintiff, that while the first defendant was on death bead and when he was not in a sound state of mind, the next friend of the minor second plaintiff obtained a will bequeathing his share to defendants 3 and 4, that the sixth defendant filed a suit in O.S.No.30 of 1980 questioning the said document and that the shares mentioned in the plaint are not correct and that the plaintiffs are entitled to 11/18th share. 8. The third defendant is the son of the younger brother of Kondappa. He filed a written statement inter alia stating that Kondappa executed registered will on 13-11-1979 in a sound disposing state of mind voluntarily out of affection in view of the services rendered by him during his old age so as to defray the expenses of the treatment. Under the Will, Kondappa discharged the property into three equal shares giving one share each to the second defendant and defendants 3 and 4. After the death of Kondappa defendants 3 and 4 became entitled to the property left behind Kondappa as per the will dated 13-11-1979. Therefore, the 2/3rd share may be ordered to be partitioned in favour of defendants 3 and 4. 9. The fifth defendant, as noticed above, is one Chinna Mallappagari Parvatamma, who is daughter of Kondappa through his first wife Mallamma. In her written statement she denied the allegation that the plaint schedule properties are joint family properties. She states that the plaint schedule properties are self acquired properties of Kondappa and they are not ancestral properties. She is not aware whether the first defendant colluded with the second defendant and registered a lease deed in favour of the latter. She has no objection for partition of the properties giving a due share to her. She is also not aware of the Will executed by Kondappa. Being the daughter of the first defendant she is entitled to share the property acquired by Kondappa and therefore, she prayed for allotment of her share. 10. The sixth defendant who is the wife of the second defendant also filed a separate written statement. In her written statement she stated that the plaintiffs are not entitled to a share as claimed in the plaint nor the first plaintiff is not entitled for 1/3rd share. Though she is not aware of her share, she is also entitled for share in the property as the first defendant is her father. When the first defendant was taking medical treatment, the guardian of the minor second plaintiff by fraud and misrepresentation and undue influence obtained the Will without consent and knowledge of the first defendant, that the first defendant was not in a state of understanding things properly that she filed O.S.No.32 of 1980 for partition and the contents of the plaint may be read as part and parcel of the written statement of the sixth defendant. Based on the pleadings, the trial Court framed the following issues for trial.1. Whether the suit properties are the separate properties of the first defendant? 2. Whether the defendants are liable for payment of the suit costs to the plaintiff? 3. Whether the suit properties are not the joint family properties of the first defendant? 4. Whether defendants 3 and 4 are entitled to any share in the suit properties? 5. Whether the minor second plaintiff's next friend has no adverse interest against the minor second plaintiff and whether he played fraud upon in knocking away the share of the heirs of the deceased first defendant? 6. Whether the alleged Will obtained by the next friend of the minor second plaintiff in favour of 3 and 4 defendants is not vitiated by fraud misrepresentation and undue influence?

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7. Whether the defendants 3 and 4 are entitled to any share in the suit lands? 8. To what relief?

Pleadings in Tr.A.S.No.3519 of 1985: 11. This appeal arises against O.S.No.32 of 1980. The suit was filed by the sixth defendant in 0. S. No. 1 of 1977 as informa pauperis. In the plaint, she alleged that the plaint schedule properties are the ancestral and joint family properties of the deceased Kondappa, that the schedule properties fell to the share of Kondappa under a registered partition deed dated 7-6-1977, that after the death of Kondappa, she and her sister Parvatamma and brother Chandrasekhar (plaintiff No.2 and defendant No.5 in O.S.No.1 of 1977) succeeded to his property, that she is entitled to 1/6th share, that Parvatamma is entitled to 1/6th share that Chandrasekhar is entitled to 4/6th share and that the joint Possession and enjoyment is detrimental to the interest of the plaintiffs. Her further case is as follows. While Kondappa was sick and bedridden, Siddappa and his son. Sitaramaiah took Kondappa to Kalikiri for medical treatment and at the Sub-Registrar's Office at Kalikiri, they played fraud and obtained a Will by misrepresentation and undue influence in respect of the plaint A schedule properties that the Will is vitiated by fraud and misrepresentation and does not bind her and that her right is not in any way affected, Further, Siddappa also obtained an agreement of sale from Kondappa. The Will and the agreement are not binding on the plaintiff and they do not deprive their right in the plaint schedule properties. After the death of Kondappa there was a mediation of elders in which Siddappa admitted that he obtained the Will and the sale deed by fraud and misrepresentation when Kondappa was not in a sound and disposing state of mind. Defendants 1 and 2 (defendants 5 and 6 in the main suit) are not cooperating for the partition of 1/6th share of the plaintiff and therefore, she prayed for partition of plaint A schedule property and for allotment of 1/6th share. 12. It may be noticed that the plaint A schedule property is the same as that of items 3 to 9 in plaint schedule properties in O.S.No.1 of 1977. In O.S.No.32 of 1980, Parvatamma, Chandrasekhar, Sitaramaiah, Kodandaramaiah (who are defendant No.5, plaintiff No.2 and defendants 2 and 3 in O.S.No.1 of 1977) are the defendants besides Siddappa as sixth defendant, who is the next friend and guardian of plaintiff No.2. 13. Parvatamma as D. 1, Chandrasekhar as D.2 and Sitaramaiah as D.3 filed written statements. The contents of the written statements filed by Chandrasekhar and Sitaramaiah are same as in O.S.No.1 of 1977. It is, however, interesting to note that Parvatamma who is the defendant No.1 in O.S.No.32 of 1980 in her written statement categorically stated that plaint A schedule properties are ancestral and joint family properties of Kondappa and that after his death she is entitled to 1/6th share along with the plaintiffs. In her written statement in O.S.No.1 of 1977 as already noticed, she stated that the plaint schedule properties are self acquired properties of late Kondappa. Be that as it may, it is not necessary to again summarise the written statements filed by the defendants in O.S No.32 of 1980. On the basis of the pleadings, the trial Court framed the following issues for consideration.1. Whether the plaintiff is entitled to any share in the suit properties? 2. Whether the Will dated 13-11-1979 is valid and vitiated by fraud? 3. Whether this defendant is liable for costs? 4. Whether the suit as framed is maintainable? 5. To what relief ? Pleadings in Tr.A.S.No.3520 of 1985:

14. This Transferred Appeal arises against O.S.No.30 of 1978 on the file of the Court of the Subordinate Judge, Madanapalle. The suit was filed by Kondappa for cancellation of lease deed and sale deed executed by him. The lease deed was executed in favour of Sitaram his son-in-law, the first defendant and the sale deed was executed in favour of Sitaram (D.3) and Krishna Murthy, the latter being the brother of Sitaram. In the plaint it is alleged as follows. The plaintiff (D.1) had a son aged 19 years, who died in or about 1974. He was in distress on account of his death. His wife became seriously ill due to cancer and he was suffering from infirmities of old age. When he was in that condition, his agricultural operations slackened. Therefore the first defendant who was till then living in Kolar gold fields and eking out livelihood in a tea stall, proposed to the plaintiff that he would help him in the cultivation andwww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 12/79

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management of the immovable properties. The first defendant also suggested that a document authorising him to manage the properties be executed undertaking to render periodical account of the income from the estate of Kondappa by taking a reasonable share in the income. As the plaintiff had to go to Tirupati monthly for the treatment of his wife he requested the first defendant to get a suitable document prepared. The first defendant went to Punganur to go to the plaintiff, got the document prepared the plaintiff signed on it and got registered under the impression that the document was prepared on the terms as agreed upon. He executed the document in a hurry as he was in a restless condition and that he did not know that the documents signed by him on 29-3-1976 are lease deed and sale deed. He never agreed to lease out the property for Rs.5,000/- per year for ten years. He never agreed to sell the house site to the defendants. He would not have signed the documents and agree for registering them if he had known that they were lease deed and sate deed. The yearly lease amount is grossly inadequate when compared to the actual annual income of Rs.8,000/- to Rs.10,000/-. There is a well with adequate water filled with oil engine for irrigation of paddy and sugarcane crops. The landed property is worth about Rs.30,000/- and house site is worth about Rs.10,000/-. Thus, the sale deed and lease deed are vitiated by fraud misrepresentation and undue influence. The first defendant was not put in possession of the suit property as alleged and the lease deed was not acted upon. When the first defendant misappropriated the profits and did not render accounts, the plaintiff protested when he was informed by the first defendant about the lease for ten years and about the documents executed on 27-3-1976 and 29-3-1976. The plaintiff was not paid Rs.5,000/- or any other amount either before or after execution of the lease deed. When the plaintiff protested, the first defendant filed O.S.No.757 of 1976 on the file of the Court of the District Munsif, Punganur and obtained interim injunction against the plaintiff. The lease deed has become an impediment to the defence in O.S.No.757 of 1976 and hence the plaintiff filed suit for cancellation of tease deed and sale deed which were executed by fraud misrepresentation, and undue influence, Items 3 to 9 are the subject matter of the lease deed and item 2 is the subject matter of the sale deed. 15. The suit was opposed by the first defendant stoutly denying any fraud, misrepresentation, coercion or undue influence as alleged by the plaintiff. In a nutshell it is the case of the defendants in O.S.No.30 of 1978 that the plaintiff, Kondappa himself approached and requested Sitaram to advance some amount to meet the expenses of medical treatment of his ailing wife that he would lease out the plaint A schedule properties and also sell the plaint B schedule house that defendants 1 and 2 agreed for the same and that as there was a pressing legal necessity for Kondappa he voluntarily, in a state of sound mind and in a state of good physical health sold plaint B schedule properties for an amount of Rs.1,500/- and registered the sate deed on 27-3-1976 after duly receiving the consideration. The defendants were put in possession of the property. The plaintiff also leased out the agricultural lands in plaint A schedule for an amount of Rs.5,000/- for ten years to be enjoyed by Sitaram and to re-deliver possession after the period to the plaintiff. Accordingly, registered lease deed dated 29.3.1976 was executed in favour of Sitaram after receiving the consideration of Rs.5,000/- for ten years at the rate of Rs.500/-per year. Since then Sitaram is in possession and enjoyment of the same, that he is raising crops that late Kondappa tried to disturb the first defendant with his peaceful possession and, therefore, the first defendant filed O.S.No.757 of 1976 on the file of the District Munsif Punganur and obtained interim injunction in I.A.No.819 of 1976 on 29-12-1976, which was confirmed on 10.3.1977. It is not correct that the first defendant, Sitaram made Kondappa to believe that the latter is required to execute a document enabling Sitaram to manage the property who at that time was required to go to Tirupati for his wife's treatment. It is not correct to say that both the lease deed and sale deed are prepared and registered on the same day. The sale deed was registered on 29-3-1976 and the lease deed was registered on 27-3-1976 and the plaintiff agreed to the terms mentioned in the lease deed, who voluntarily read both the documents and they were also read out to him. The consideration for both the documents is adequate. It is wrong to state that the annual income of the suit property is Rs.8,000/-to Rs.10,000/- and that the same is exaggerated. The landed property itself is not worth more than Rs.50,000/- The house site does not cost Rs. 10,000/- The lease deed and the sale deed are not vitiated by fraud, misrepresentation and undue influence. The plaintiff is estopped from questioning the documents. On the above pleadings the learned Judge framed the following issues and additional issue.1. Whether the sale deed dated 27-3-1976 and lease deed dated 29-3-1976 are vitiated by fraud and misrepresentation'? 2. To what relief ?

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1. Whether the Will executed by the first plaintiff is true and valid?

Pleadings in Tr.A.S.No.3521 of 1985: 16. This appeal arises against the decree in O.S.No.103 of 1978 on the file of the Court of Principal District Munsif. Punganur. Originally, the suit was filed as O.S.No.103 of 1978 on the file of the Court of the Subordinate Judge, Madanapalle. Initially the suit being O.S.No.757 of 1976 was filed on the file of the Court of Principal District Munsif, Punganur and later transferred to the Court of the Subordinate Judge. Madanapalle to be tried along with the connected suits. 17. Sitaram, the son-in-law of Kondappa filed the suit seeking permanent injunction restraining his father-in-law from entering upon his suit lands - items 3 to 10 of plaint A schedule in O.S.No.1 of 1977 and interfering with his alleged possession and enjoyment thereof. In the plaint he alleged that the defendant executed 'Gutha Muchilika' (lease deed) covering the plaint schedule properties on 29-3-1976 for ten years after receiving an amount of Rs.5.000/-that as per the lease deed the defendant delivered possession of the property to the plaintiff who is in continuous possession and enjoyment of the suit schedule property by raising crops, that the defendant's wife his divided brother and his son and other family members are obstructing him in ploughing the land and transplanting paddy seedlings with an intention to occupy the plaint land by force and violence wrongfully and hence permanent injunction may be granted restraining the first defendant his family members and men from interfering with his peaceful possession and enjoyment of the same. 18. Kondappa filed written statement and resisted the suit. The averments in his written statement are the same as the averments in the plaint in O.S.No.30 of 1978 filed by him for cancellation of lease deed and sale deed. He reiterated that he never intended to execute any lease deed in favour of the plaintiff and never received any lease amount from him and that the plaintiff was not entitled to remain in possession and enjoyment of the suit property. As noticed earlier, after the death of Kondappa, Chandrasekhar. Parvatamma and Reddemma (plaintiff No.2 and defendants 5 and 6) were added as legal representatives. The fifth defendant. Parvatamma filed a separate written statement alleging that the lease deed executed by Kondappa in favour of Sitaram is not valid and he is not entitled to remain in possession and for permanent injunction as prayed in the suit. The fourth defendant who is the wife of Sitaram, plaintiff in O.S.No.103 of 1978 (O.S.No.757 of 1976) filed a separate written statement alleging that she is entitled to 11/6th share in the suit property and that she is not in any way causing obstruction to the plaintiff's enjoyment of the suit property. The second defendant, Chandrasekhar filed a memo adopting the written statement filed by Parvatamma. 19. On the basis of the above said pleadings the following issues and additional issues were framed.1. Whether the plaintiff is entitled to the permanent injunction prayed for? 2. Whether the suit lease deed is vitiated by fraud and undue influence as pleaded by the defendant'? 3. To what relief?

Additional Issues:1. Whether the document dated 29-3-1976 is true valid and binding? 2. Whether the plaintiff is entitled for injunction? 3. To what relief?

20. The trial Court tried the suits jointly. Entire evidence was recorded in O.S.No.1 of 1977 treating the same as evidence in other three suits. Except the second defendant (Krishna Murthy) in O.S.No.30 of 1978. the parties in O.S.No.30 of 1978. O.S.No.103 of 1978 and O.S.No.32 of 1980 are also parties in O.S.No.1 of 1977. Therefore, as already indicated, all the parties will be referred to by their status in O.S.No.1 of 1977. 21. The guardian of the minor second plaintiff, Payala Siddappa the is also described as Siddaiah) was examined as P.W.1 and one K.Chandramachari was examined as P.W.2. Besides this oral evidence, the plaintiff marked Exs.A.1www.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 14/79

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to A.4 which are photographs and negatives showing the suit property and irrigation well. Fourteen (14) witnesses were examined as defendants' witnesses D.W.1 is the third defendant. D.W.4 and D.W.5 are defendants 5 and 6 and D.W.7 is the second defendant. D.Ws.2, 3, 6 and 8 to 14 were examined in an attempt to prove important documents marked in the suit. Exs.B1 to B 24 were marked for the defendants. The registered Will dated 13-111979 (Ex.B.1) and registered lease deed dated 20-3-1976 (Ex.B.2) executed by Kondappa in favour of Sitaram. the registered sale deed (Ex.B.4) dated 27-3-1976 by Kondappa in favour of Sitaram and his brother Krishna Murthy are the important documents relevant for deciding the controversy. Besides this, the registered partnership deed dated 17-6-1974 between late Kondappa and Siddappa (P.W.1) is also one of the important documents. 22. The issues framed in the four different suits mainly deal with the questions1) Whether the suit properties are joint family properties of Kondappa or separate properties? (issues No. 1 and 3 in O. S. No. 1 of 1977) 2) Whether the Will set up by defendants 3 and 4 (sons of P.W.1) is true and valid and is not vitiated by fraud, misrepresentation and undue influence? (issue No.6 in O.S.No. 1 of 1977) 3) Whether the lease deed and sale deed (Ex.B.4) are liable for cancellation on the ground of fraud and misrepresentation? (issue No.1 in O.S.No.30 of 1978 and Issue No.2 and additional issue No.1 in O.S.No.1 of 1977) 4) How and why the property of late Kondappa is to be partitioned among the heirs who are entitled to it? (Issues No.4 and 7 in O.S.No.1 of 1977 and issue No.1 in O.S.No.32 of 1980)

23. The other incidental questions which were also adverted to by the trial Court are not very much pressed before me and therefore they are not specifically pointed out though they will be dealt with at appropriate place in the judgment. 24. The trial Court on consideration of oral and documentary evidence, on the first question held that the properties are joint family properties and not self-acquired properties of Kondappa. On the second question it was held that Ex.B.1 will was validly executed by Kondappa during his lifetime and that the same is true valid and binding on all the parties to the suit including defendants 5 and 6. As to whether Exs.B.2 and B.4 - lease deed and sale deed executed by Kondappa are vitiated by fraud misrepresentation and undue influence, the trial Court, while holding that Exs.B.2 and B.4 are not supported by consideration and were obtained by practicing undue influence, fraud and misrepresentation upon Kondappa and they are not binding upon his legal heirs. On the last question, the trial Court taking into consideration the fact that the first son of Kondappa and Mallamma by name Reddeppa predeceased his mother, upon which his 1/3rd share in the joint family devolved on Mallamma, the trial Court held that the second plaintiff is entitled to 11/18th share, defendants 3 and 4 (sons of P.W.1) are entitled to 2/l8th share each under Ex.B.1 will and that the sixth defendant, Reddemma is entitled to 3/18th share inherited to her mother Mallamma. 25. Feeling aggrieved by the judgment and decree, the second defendant filed A.S.No.3025 of 1982 before this Court. The unsuccessful parties in O.S.No.30 of 1978. O.S.No.103 of 1978 and O.S.No.32 of 1980 filed appeals before the District Court, Chittoor which were later transferred to this Court to be adjudicated along with A.S.No.3025 of 1982, which is the main appeal. Though technically some of the contentions and grounds urged by the appellant in A.S.No.3025 of 1982 are not permissible as being alleged tenant of items 3 to 10 of plaint A schedule property, he cannot be said to have any grievance either regarding Ex. B. 1 Will or the shares apportioned by the trial Court. However, as he is aggrieved by the judgment and decree in O.S.No.30 of 1978 as well as O.S.No.103 of 1978 and all the matters are being heard together I have finally heard the matters. Further, the same counsel who is appearing for the defendants is also appearing for the plaintiff in O.S.No.32 of 1980 and from this point of view also I heard the learned counsel for the appellant in detail. Submissions of the learned counsel in brief 26. Learned counsel for the appellant, Sri K.V.Reddy submits that the suit schedule property is self, acquired property of Kondappa and therefore on his death the second plaintiff and defendants 5 and 6 being class 1 heirs alone are entitled for partition in equal shares. Secondly, he submits that Ex.B1 Will executed by Kondappa is datedwww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 15/79

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13-11-1979 and the same is not valid and the execution of the same is surrounded by various suspicious circumstances. The Will is forged and brought into existence by P.W.1, the father of defendants 3 and 4. In any event, the Will is not properly proved in accordance with Sections 59 and 63 of Indian Succession Act. 1925 and Section 68 of Indian Evidence Act, 1872, if the Will is disbelieved, defendants 3 and KMs. 4 will not be entitled to 2/18th share each and the entire property, assuming it as a separate property of Kondappa, will have to be partitioned among second plaintiff and defendants 5 and 6. The learned counsel further submits that Exs.B.2 and B.4 are voluntarily executed by Kondappa and they are not vitiated by fraud or undue influence. The trial Court erred in drawing an inference based on the alleged unconscionable consideration for the lease deed that Ex.B.2 lease deed is vitiated by fraud. Indeed, there is no finding that the amount of Rs.1500/- the sale consideration for Ex.B.2 sale deed is unconscionable. In any event, the learned counsel submits that fraud and misrepresentation should be specifically pleaded and proved beyond doubt and no action or no document can be nullified on mere assumption of fraud and misrepresentation. 27. Sri K.F.Baba, learned counsel appearing for the second plaintiff (who is since declared as major) submits that the suit schedule property is joint family property of Kondaiah and his sons. Except the fifth defendant, Parvatamma, the daughter of Kondappa through his first wife, none of the defendants disputed the joint family nature of the property in the written statements. The evidence of the second defendant as D.W.7 also shows that the property is joint family property. Exs.B.2 and B.4 which are the two documents sought to be cancelled by Kondappa in O.S.No.30 of 1978 do not suggest that the property allegedly demised under Exs.B.2 and B.4 is separate property of Kondappa. Exs.B.2 and B.4 contain unconscionable terms and therefore it has to be held, that they are vitiated by fraud and misrepresentation. The learned counsel contends that Ex.B1 will is not true and valid and is not binding on the second plaintiff if Ex.B.1 Will is disbelieved, according to the learned counsel, the second plaintiff would be entitled to 15/18th share and Reddemma being the daughter of Mallamma alone would be entitled to 3/18th share and defendants 3 and 4 will not be entitled to any share in the property of joint family of Kondappa and his family. 28. The learned counsel for respondents 3 and 4, Sri Vijayachandra Reddy submits that Ex.B.2 lease deed is not supported by consideration and therefore under Section 25 of the Indian Contract Act the same is void. The lease deed executed by Kondappa in favour of the second defendant is not for the benefit of the estate and not binding on the second plaintiff. The second defendant is not a benefitted transferee under Exs.B.2 and B4 and therefore he cannot seek any injunction in the suit. Adverting to Ex.B.1 Will, the learned counsel submits that under Section 30 of the Indian Succession Act, a Hindu is entitled to dispose of his undivided share by Will and therefore the will executed by Kondappa bequeathing his l/3rd share in the joint family property in equal shares to defendants 3 and 4 is legally valid and binding on all the parties. There are no suspicious circumstances surrounding the execution of the will by Kondappa and that P.W.2 and D.W.2 are attestors of Ex.B.1 Will and there is nothing to disbelieve the evidence of these witnesses. Therefore, he would urge to dismiss the appeals. Points for consideration : 29. Having regard to the pleadings in the suits, the findings recorded by the lower Court and the rival contentions before this Court, the points that arise for consideration in these appeals are1) Whether the suit properties are joint family properties of Kondappa or separate properties? 2) Whether the Will (Ex.Bl) set up by defendants 3 and 4 (sons of P.W.1) is true and valid'? 3) Whether the lease deed (Ex.B.2) and sale deed (Ex.B4) are liable for cancellation on the ground of fraud and misrepresentation'? 4) To what relief.?

In re Point No.1: 30. The appellant in Tr.A.S.No.3519 of 1985 (plaintiff in O.S.No.32 of 1980) is the sixth defendant in O.S.No.1 of 1977. In other three appeals, the second defendant who is her husband is the appellant. The second defendant did not specifically plead that the properties are self-acquired properties of Payala Kondappa, In his written statements in O.S.No.1 of 1977 and in O.S No.30 of 1978 and in his plaint in O.S.No.103 of 1978 the second defendant did notwww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 16/79

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specifically plead that the suit schedule property in O.S.No 1 of 1977 is not joint family property. The first defendant, Payata Kondappa, defendant No.6 and defendants 3 and 4 admit in their written statements that the property is joint family property. It is interesting to note that defendant No.5 who is the daughter of Payala Kondappa through his first wife alone disputed the claim of the plaintiffs that it is joint family property. It is also interesting to note that she (defendant No.5 in O.S.No. 1 of 1977) filed written statements in O.S.No.32 of 1980 (partition suit by defendant No.6) and in O.S.No.103 of 1978 - suit for injunction by defendant No.2). But in these written statements the pleading by defendant No.5 that it is not joint family property is absent. In the appeals, the learned counsel who appears for the daughter as well as son-in-law of Payata Kondappa (defendants 2 and 6) however submits that when the suits were tried jointly and a common judgment is rendered the absence of plea in the pleadings of defendant No.2 have to be ignored, as the plaintiffs did not discharge the burden which is on them that the property is joint family property. The lower Court erred in determining the issue Nos.1 and 3 in O.S.No.1 of 1977 in favour of the plaintiffs. The learned counsel also relied on the Will - Ex.B.1 and contends that the same does not specifically describe the property as joint family property. Before examining further, it is necessary to briefly notice the relevant pleadings. 31. In the written statement in O.S.No.1 of 1977, the second defendant states that "plaintiffs and the first defendant are members of a Hindu joint family.......and that he has no concern with the division of the property which is between the first plaintiff and the first defendant". His wife, the sixth defendant mainly attacks Ex. B. 1 Will and does not specifically aver that it is self-acquired property of Kondappa. It is only the fifth defendant, the daughter of Kondappa through his first wife who alleged that 'plaint schedule properties are self-acquired properties of the first defendant and they are not ancestral properties. In O.S.No.32 of 1980 filed by the fifth defendant after the death of her father claiming 1/6th share in the property, in paragraph 4 of the plaint in O.S.No.32 of 1980, she avers that plaint schedule properties are ancestral and joint family properties of Payala Kondappa and that after his death she became entitled to 1/6th share. It is interesting that Paravathamma who is fifth defendant in O.S.No. 1 of 1977 and first defendant in O.S.No.32 of 1988 in her written statement in the latter suit in paragraph 3 categorically admits that plaint A schedule properties are ancestral and joint family properties of Payala Kondappa. These are the necessary pleadings. Absolutely there is no evidence either oral or documentary to support the plea of the appellant in A.S.No.3025 of 1982 that it is self-acquired property of Kondappa. P W 1 and PW2 admit that it is joint family property of Kondappa. P.W 1 who is the younger brother of Kondappa deposes that he and his brother defendant No.1 got divided and the suit schedule properties fell to the share of Kondappa who along with his wife Reddemma constituted joint family. There are no new acquisitions by Kondappa. D.W.5 who is fifth defendant in O.S.No.1 of 1977 and plaintiff in O.S.No.32 of 1980 is silent in her evidence as to the nature of the property. Indeed, D.W 6 who is defendant No.6 and who took a specific plea in the written statement that it is self-acquired property of Kondappa does not even whisper in the evidence that it is self-acquired property. Her entire deposition deals with execution of Ex.B.1 Will by Kondappa. Reading the pleadings and evidence on record it is not possible to accept the contention of the learned counsel for the appellants that the suit schedule property is self-acquired property of Kondappa, The learned counsel relied on the judgments of this Court in Subbayya v. Sitaramamma 1958 (2) An.WR 59 and S. Udayabhaskara Rao v. V. V.Kanaka Durga Rao 1955 (2) ALT 534 and the judgment of the Supreme Court in Mudigowda v. Ramachandra, MANU/SC/0289/1969 : [1969]3SCR245 and submits that when P.W.1 and Kondappa partitioned the properties there is a severance of joint status and therefore, when the plea of plaintiffs is denied, the burden lies on the plaintiffs to prove that the property is joint family property. 32. Sri K.F.Baba, learned counsel for the second plaintiff submits that the appellants admitted that the property is joint family property of Kondappa and hence there was no necessity for the plaintiffs to prove specifically that it is joint family property. He also submits that the plaintiffs and the first defendant alone constituted point family and when they themselves go to the Court for partition admitting the joint nature of the property, the second defendant who is son-in-law and alleged lessee of the property cannot question the nature of the property. He also submits that though Parvatamma raised a plea she herself admitted in the written statement filed in O.S.No.32 of 1980 that it is ancestral and joint family property and that though the appellant in Tr.A.S.No.3519 of 1995 (filed by Reddemma) was in the witness box. She never deposed against the plea of the plaintiffs. Therefore, he submits that the question does not arise at all in the appeal. 33. According to Mitakshara Law property inherited by a male Hindu from his father, grand-father or great grandfather is ancestral property, sons grandsons and great-grandsons acquire an interest in the ancestral property by birth.www.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 17/79

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As between the son and the father, they have equal interest in the ancestral property and the son's interest is independent of his father's interest. Such property is divisible as it is always equated with coparcenary property, See principles of Hindu Law, by Mullas (15th Edn.) Pp.221, 223, 224 and 303. 34. In Bhagwati Prasad v. Rameshwari Kuer, MANU/SC/0060/1951 : [1951]2SCR603 , their Lordships of the Supreme Court laid down the principles as under.The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved. There is no presumption on the plaintiff's side too that because one member of the family separated himself there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other co-parceners or that they remained united The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.

35. In Raghavamma v. Chenchamma, MANU/SC/0250/1963 : [1964]2SCR933 . His Lordship Subba Rao, 1, (as His Lordship then was) relied on the above statement of law and reiterated the principle as under.Whether there is a partition in a Hindu joint family is therefore a question of fact, notwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share, but when evidence has been adduced on both sides the burden of proof ceases to have any practical importance.

36. In Mudigowda's case (supra) the Supreme Court dealing with the question on burden of proof as to the nature of joint family property relied on the judgment of the Privy Council in Appalaswami v. Suryanarayanamurti AIR 1947 PC 189, and observed as under.The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint possesses any joint property. The burden of proving that any particular property is joint family property is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the jointly family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired it is only after the possession of an adequate nucleus is shown that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate

37. The other two judgments relied on by the learned counsel for the appellants in Subbayya' case and Udayabhaskara Rao's case (supra) are also to the similar effect and it is not necessary to refer to the same in view of the settled legal position. Applying the above principles, is it possible to agree with the learned counsel for the appellants'? 38. Admittedly after partition between P.W.1 and Kondappa, the latter did not acquire any property and he continued to manage the ancestral property in which plaintiff No.2 acquired a right by birth. The first defendant late Kondappa agreed that they are joint family properties and indeed his two daughters also agreed either positively or by not denying and proving otherwise that it is Joint family property. Therefore, the appellants cannot be permitted to take a plea at this stage that the plaintiffs failed to discharge their burden on them. The plaintiffs have discharged their burden by pleadings and evidence that the property of late Kondappa is joint family property. Therefore, on Point No. 1, I hold that the suit schedule properties in O.S.No.1 of 1977 are joint family properties of Kondappa. In re Point No. 2: 39. Payala Siddappa (P.W.1) is the younger brother of Payala Kondappa. After the death of Payala Mallamma (first plaintiff), as per the orders of the trial Court dated 19-11-1979 in I.A.No.778 of 1979 P.W.1 was appointed as guardian for the minor second plaintiff Defendants 3 and 4 are the sons of P.W.1. In the written statements filed by defendant No.3, the case set up is that Payala Kondappa executed registered Will - Ex.B1 in a sound disposing statewww.manupatrafast.in/PrintEmailDoc/PrintMultipleDoc.aspx?i=0,'129789','129791','129794','129795','129798','129797','129802','129790','129793' 18/79

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of mind voluntarily out of affection in view of the services rendered by him during Kondappa's old age towards defraying the expenses of the treatment, that under the Will, Kondappa bequeathed his property in three equal shares to the second plaintiff, third and fourth defendants and that after the death of Kondappa all the three became entitled to his property left behind him. Therefore, defendants 3 and 4 claimed 2/3rd share in the property of Kondappa. The written statement of Kondappa filed in O.S.No.1 of 1977 before his death is silent on the execution of the Will. This could be because the Will came into existence after filing the written statement or the beneficiaries wanted execution of the Will to be known after his death. Be that as it may, the second defendant who is the husband of sixth defendant also did not make any allegation with regard to the Will. It is only the sixth defendant, the wife of the second defendant (serious contender against the Will - Ex. B. 1) who states in her written statement as well as in her plaint in O.S.No.32 of 1980 that P W.1 by fraud and misrepresentation and exerting undue influence obtained a fraudulent document and that Kondappa was not in a state of understanding things properly when PW.1 obtained Ex.B.1 Will. It is also to be noted that Payala Kondappa died on 24-11-1979 and thereafter defendants 3 to 6 were added as defendants as per the orders in I. A.No.302 of 1980 dated 26-7-1980. 40. It is also necessary to notice the pleadings of the sixth defendant in her separate suit in O.S.No.32 of 1980. The averment/allegation in para 5 of the plaint in O.S.No.32 of 1980 filed by Reddemma is as follows :While the plaintiff's father Payala Kondappa was sick and bedridden and under medical treatment and was not in a sound and disposing state of mind, the third defendant and the fifth defendant took him to Kalikiri on the pretext that he would be given medical treatment there and at the Sub-Registrar s office at Kalikiri defendants 3 and 5 by undue influence and by fraudulent means and by misrepresentation obtained a will on 13-11-1979 in respect of the plaint A schedule properties in favour of defendants 2, 3 and 4 with a view to gain wrongfully against the interest of the plaintiff and defendants 1 and 2. The alleged Will dated 13-11-1979 obtained by defendants 3 and 5 is vitiated by fraud and misrepresentation and undue influence and will not bind the plaintiff and her right is not in any way affected. While obtaining the Will from the deceased Payala Kondappa the propounder was in a dominating position and the testator was not in a position to understand the nature and effect of disposition and so the Will is invalid and unenforceable and void. The testator's mental power was impaired due to old age, he possessed no memory and intelligence to form a proper judgment as regards disposition(defendants 2, 3, 4 and 5 referred to in the above para are PW1 the second plaintiff and defendants 3 and 4 in 0 S No.1 of 1977.)

41. Defendants 3 and 4 examined P.W.2 and D W.2. the two attestors and D.W.3 who scribed Ex.B.1 Will. The learned counsel Sri K.V.Reddy however attacked the Will. He submits that P W.2 did not speak about the attestation in the chief examination and when he was recalled in his cross-examination by the defendant No.3 he spoke about the attestation. D.W.2, the alleged other attestor is the brother-in-law of the third defendant and, therefore, there is no valid proof of EX B 1 Will. Referring to the evidence of D.W.3, the scribe of Ex.B.1 the learned counsel submits that the evidence of the witness does not inspire confidence as he himself states that Kondappa first signed Ex.B.1 Will and later when there was a shaking in the hands he put his thumb impression on the advice of the Sub-Registrar. Relying on these circumstances, the learned counsel submits that Ex.B.1 Will is not properly proved as required under Sections 67 and 68 of the Indian Evidence Act as well as Sections 59 and 63 of the India

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