Suit for declaration and injunction on the basis of a Will dated 20.05.1991 executed by the owner of the said properties Sri Sangappa son of Pampanna Shettar of Koppal;
and that a trust created by the defendants on 28.05.1994, in the name “Shri Sangappa Pampanna Gadagshettar Trust, Koppal” in relation to the suit properties, was illegal, void and not binding on the plaintiffs.
The contesting defendants i.e., defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while questioning the genuineness of the alleged Will dated 20.05.1991.
The defendant No. 7, one of the erstwhile trustees of the said trust, however, admitted and endorsed the claim of the plaintiffs. - Trail court decreed the suit - High court dismissed the suit as the will is not proved - Apex court confirmed the same .
Will - Suspecious Circumstances - Appreciation of Evidence. VVIP
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6076 OF 2009
SHIVAKUMAR & ORS. ……… Appellant(s)
Versus
SHARANABASAPPA & ORS. ………Respondent(s)
J U D G E M E N T
Dinesh Maheshwari, J.
PRELIMINARY AND BRIEF OUTLINE
1. By way of this appeal, the plaintiff-appellants have challenged the
judgment and decree dated 26.10.2007 passed by the High Court of
Karnataka at Bangalore in Regular First Appeal No. 910 of 2001 whereby,
the High Court reversed the judgment and decree dated 12.09.2001 passed
by the Court of Civil Judge (Senior Division), Koppal in Original Civil Suit No.
56 of 1994.
1.1. The civil suit aforesaid was filed by the plaintiff-appellants for
declaration and injunction, essentially with the submissions that they had
acquired ownership rights in the suit properties (described in Schedules A to
D attached to the plaint) on the basis of a Will dated 20.05.1991 executed by
1
the owner of the said properties Sri Sangappa son of Pampanna Shettar of
Koppal; and that a trust created by the defendants on 28.05.1994, in the
name “Shri Sangappa Pampanna Gadagshettar Trust, Koppal” in relation to
the suit properties, was illegal, void and not binding on the plaintiffs. The
contesting defendants i.e., defendant Nos. 1 to 5 refuted the claim so made
by the plaintiffs while questioning the genuineness of the alleged Will dated
20.05.1991. The defendant No. 7, one of the erstwhile trustees of the said
trust, however, admitted and endorsed the claim of the plaintiffs.
1.2. After framing necessary issues and after taking the oral and
documentary evidence adduced by the parties, the Trial Court, in its
judgment dated 12.09.2001, decided the principal issue relating to the said
Will dated 20.05.1991 in favour of the plaintiffs and, while also returning its
findings on other necessary issues in favour of the plaintiffs, proceeded to
decree the suit with declaration that the trust created by the defendants on
28.05.1994 was not binding on the plaintiffs, particularly in relation to the suit
properties; and that the plaintiffs were owners of the suit properties as
claimed. The Trial Court also issued injunction against defendant Nos. 1 to 5
that they shall not interfere with the plaintiffs’ peaceful possession and
enjoyment of the suit properties.
1.3. The judgment and decree so passed by the Trial Court were
questioned by the contesting defendants in the High Court by way of the said
first appeal. The High Court, in its impugned judgment dated 26.10.2007
proceeded to allow the appeal while reversing the decision of Trial Court on
2
the principal issue relating to the genuineness of the Will in question. The
High Court found several unexplained suspicious circumstances as also
discrepancies in the Will in question and held that the alleged Will dated
20.05.1991 was not a genuine document. Being aggrieved, the plaintiffs
have preferred the instant appeal.
THE LEAD PERSONS, PARTIES, WITNESSES AND DOCUMENTS AS
ALSO THE PROPERTIES INVOLVED
2. It is but apparent that genuineness of the Will dated 20.05.1991,
said to have been executed by Sri Sangappa son of Pampanna Shettar of
Koppal, allegedly bequeathing the suit properties to the plaintiffs, is in
question in this case.
3. For comprehension of the subject-matter and for effective
determination of the questions raised in this appeal, we may take note of the
principal persons involved in the matter with their respective roles as also the
documents and the properties in question as infra:
3.1. The testator of the Will in question:
Late Sri Sangappa son of Pampanna Shettar of Koppal.
He was a businessman and was also the Chairman of Sri
Gavisiddeshwara V.V. Trust, Koppal (which is different than the trust
questioned in the suit). Late Smt. Mahantamma was his wife.
Undisputedly, both the testator and his wife died in a car accident on
20.05.1994. The testator and his wife did not have any surviving
children, as their children had died in infancy and they were issueless
on the date of their death.
3
3.2. The plaintiffs (the appellant Nos. 1 to 3 herein):
The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj, all
sons of Basetteppa, claim to be the legatees under the Will in
question. They are full-brothers and are grand-nephews of the
testator’s wife. According to the plaintiffs, they were brought up by
the testator and his wife and they were staying with the testator.
3.3. The contesting defendants (Respondent Nos 1 to 4 herein):
The defendant No. 1 Sri Sharanabasappa son of Pampanna is the
younger brother of the testator; the defendant Nos. 2 and 3 Smt.
Basavannemma and Smt. Siddama are the sisters of the testator;
the defendant No. 4 Sri Pampanna son of Basappa and defendant
No. 5 Sri Siddanna son of Fakirappa are the nephews of the
testator.1
-
2
3.3.1. The defendant Nos. 6 to 8:
The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappa
and No. 8 Dr. N.S.Gaikwad were joined in the suit for being the
members of the trust created by other defendants, which was
questioned by the plaintiffs. The defendant No. 7 Sri Veerabasappa
was said to be a close associate of the testator in running
Gavisiddeshwar College of which, the testator was the Chairman of
1The defendant No. 2 Smt. Basavannemma expired during the pendency of the suit and the fact was
noted on the cause-title.
2 The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired during the pendency of this
appeal and his legal representatives were brought on record by the order dated 30.03.2015.
4
Governing Body. This defendant was not related to either of the
parties; he, however, filed a separate written statement, admitting
and endorsing the claim of the plaintiffs.3
3.4. The trust in question: Sri Sangappa Pampanna Gadagshettar Trust:
The defendants created this trust on 28.05.1994 (in the name of the
testator) with inclusion of the properties in question, to pursue
philanthropic and charitable purposes. The creation of this trust was
challenged in the suit.
3.5. Special mention: Sri Gavisiddeshwara Swami, Koppal (Swamiji):
According to the plaintiffs, the testator was a philanthropic and a
devotee of Sri Gavisiddeshwara Swami, Koppal4
; and the contested
Will was opened in the presence of Swamiji. However, Swamiji was
not examined as a witness in this case.
3.6. The key witnesses:
PW-1 Sri Basetteppa:
He is father of the plaintiff Nos. 1 to 3. He allegedly used to assist
the testator in his business.
PW-3 Sri Radhakrishnarao and PW-4 Sri Ayyanagowda Hiregowdar:
They are claimed to be the attesting witnesses of the contested Will.
PW-8 Sri Bhusnoormath, Advocate:
3 The defendant No. 6 Gurushantappa expired on 13.10.2001. He was a trustee of the trust in
question and no substitution was made in his place. The name of defendant No. 7 Veerabasappa was
deleted from the array of parties before the High Court on 24.07.2006. The defendant No. 8 has
remained on record as respondent No. 5 in this appeal.
4 Hereinafter also referred to as ‘Swamiji’.
5
He was a friend and advocate of the testator. Allegedly, the testator
handed over the contested Will to him in a sealed cover with the
instructions that the same was to be opened after his death, only in
the presence of Swamiji. The contested Will was allegedly opened
after the sudden demise of the testator and his wife in the presence
of Swamiji on 29.05.1994.
3.7. Relevant exhibited documents:
Ex. P.2: Will cancellation deed 26.09.1990 whereby, the testator
cancelled an earlier Will executed by him in the year 1974.
Ex. P.3: Handwritten draft of the Will said to have been prepared by
the testator and kept in the sealed cover with the executed Will.
Ex. P.4: The contested Will dated 20.05.1991.
3.8. Suit properties:
Schedule A: Consisting of the parcels of land in Sy. No. 631 and Sy.
No. 632. These were in the name of the testator’s wife as per the
relevant records.
Schedules B, C & D: Consisting of shops and houses; admittedly
they belonged to the testator.5
SUMMARY OF THE PLEADINGS; ISSUES; AND EVIDENCE
4. Having taken note of the persons and the properties involved in the
matter, we may now summarise the pleadings of the parties, the issues
5 The testator owned several other properties too that were not mentioned in the Will, and hence, are
not a part of the suit properties.
6
framed by the Trial Court, and the evidence led by the parties for
appreciating the respective findings of the Trial Court and the High Court.
The plaint:
4.1. The plaintiff-appellants filed the suit aforesaid seeking declaration
and injunction with the averments, inter alia, that Schedule A to D properties
were owned and possessed by the testator Sri Sangappa Shettar of Koppal;
that Schedule A properties, being the parcels of land, were standing in the
name of the testator’s wife Mahantamma but were purchased by him. It was
averred that on 20.05.1994, the testator Sangappa Shettar and his wife died
in a car accident on the National Highway between Hubli-Shiggoan. It was
also averred that both of them died issueless as the children born to them
had died in infancy. The plaintiffs further pointed out the relations of the
parties with the testator and alleged that the testator was earlier joint with his
family but, in or around the year 1964, a partition took place and thereafter,
he remained separate until his demise. The plaintiffs asserted that their
mother Mahadevamma was the sister of the wife of testator; that the testator
Sri Sangappa, out of love and affection, brought up the plaintiffs by keeping
them in his house; that the marriage of the plaintiffs’ father (PW-1) was
performed by the testator in the year 1972; and that the deceased testator
also requested the father of the plaintiffs to assist him in the business. The
plaintiffs further averred that the deceased testator executed a Will in the
year 1974 but, being disillusioned by the behaviour of legatees, he cancelled
the same on 26.09.1990. The plaintiffs pointed out that the deceased testator
7
was the Chairman of Sri Gavisiddeshwara V.V. Trust, Koppal and ardent
devotee of Sri Gavisiddeshwara Swamiji of Koppal. The plaintiffs also
averred that the deceased testator changed the name of the business from
Gurukrupa Stores to Gurukrupa Traders.
4.1.1. The plaintiffs further averred that on 20.05.1991, the testator Sri
Sangappa Shettar executed a Will bequeathing Schedule A properties in
favour of the plaintiffs jointly; Schedule B property in favour of the plaintiff No.
1; Schedule C property in favour of the plaintiff No. 2; and Schedule D
property in favour of the plaintiff No. 3 whereas his remaining properties
were directed to be kept intact and plaintiffs were directed to apply those
properties for charitable purposes. The plaintiffs asserted that the deed of the
Will in question was executed by the deceased voluntarily and in sound state
of mind; and after due execution, he kept the Will in a sealed cover and
deposited the same with Sri Bhusanoormath, Advocate (PW-8) with
directions to open the same after his death in the presence of Swamiji.
According to the plaintiffs, after the death of the testator Sangappa, PW-8
Bhusanoormath, Advocate intimated about the Will and the same was
opened on 29.05.1994 in the presence of Swamiji.
4.1.2. The plaintiffs maintained that the relationship between the deceased
testator and the defendants was not cordial until his death; however, the
deceased bequeathed a house to defendant no. 3 so that she may reside
therein. The plaintiffs alleged that the defendants were well aware about the
Will executed by the testator and yet created the trust in question which was,
8
in any case, not of any adverse effect on the rights of the plaintiffs who had
become owners of the suit properties by virtue of the Will executed by the
testator. With these averments, the plaintiffs sought declaration against the
trust so created by the defendants as also on their ownership rights over the
properties in question and further for injunction against the defendants.
The written statement by defendant No. 1 as adopted by defendant Nos. 2-6
and 8:
4.2. The contesting defendants refuted the plaint averments and
contended, inter alia, that the suit was not maintainable under the provisions
of Section 92 of the Code of Civil Procedure, 1908 (‘CPC’); that the trust in
question was not impleaded as party; and that the description of suit
properties was not correct.
4.2.1. While stating that both Sri Sangappa and his wife died in the
vehicular accident that took place at about 3:15 p.m. on 20.05.1994, these
defendants stated that their dead bodies were identified after about 18 hours;
and that the defendant Nos. 1 to 3 performed their last rites. The allegation
regarding partition was denied.
4.2.2. The contesting defendants further denied the assertions that the
plaintiffs were brought up by Sangappa and maintained that the plaintiffs
were living with their father and mother in a rented house. The contesting
defendants alleged that the relations between the deceased and the father of
the plaintiffs were strained; and that father of the plaintiffs was, in fact,
running the business in the name of Sri Karibasavashwar Trading Co.
9
opposite to the place of business of the deceased Sangappa that was
running in the name of Gurukrupa Traders.
4.2.3. While questioning the Will propounded by the plaintiffs, the
contesting defendants alleged that the plaintiffs are interested in the
properties of the deceased and had forged the Will with ulterior motives.
These defendants denied that the deceased prepared the Will and kept the
same in the sealed cover and deposited it to the Advocate with instruction to
open the same in the presence of Swamiji. The contesting defendants
recounted various suspicious circumstances concerning the Will in question
while alleging, inter alia, that the Will did not bear the signature of deceased
Sangappa; that there was a mismatch in Hindi Calendar date with that of
English Calendar; that the past events were stated in the Will in such a way
that they would happen in future; that various blanks were left in the
description of the properties and even otherwise, the description was
incorrect; that the amount bequeathed to Rajeshwari and Siddabasemma
was not shown; and that the description of the properties under the Will was
inconsistent, incorrect and incomplete.
4.2.4. The contesting defendants also alleged that after the death of
Sangappa and his wife, they became the Class II heirs of the deceased
Sangappa according to Hindu Succession Act and the trust was created for
implementation of the noble thoughts of the deceased. The contesting
defendants also alleged that the declaration of the trust on 28.05.1994 was
prior to the creation of the deed of disputed Will, which was allegedly opened
10
on 29.05.1994. It was also alleged that the defendant No. 7 started acting
against the interest of the trust and he was removed from the trust by way of
a resolution.
The written statement by defendant No. 7- supporting the plaintiffs
4.3. The defendant No. 7 filed a separate written statement, essentially
admitting the claim of the plaintiffs. This defendant stated that he was a close
associate of the deceased in running Gavisiddeshwar College; and that he
was acquainted with the handwriting of the deceased. According to this
defendant, after the demise of Sri Sangappa, the advocate met him and
informed about the trust with religious and charitable objects to be formed
out of the properties not bequeathed. Further, one day he stopped for paying
respect to Swamiji near the house of Principal Mallikarjun Somalapur; and
the advocate informed Swamiji about the Will left by the deceased; and
Swamiji instructed that the Will be given effect to, which may give peace to
the departed soul.
4.3.1. The defendant No. 7 further stated that the advocate handed him
over a xerox copy of the Will and he was convinced about its genuineness
after examining the same and after enquiring from the attesting witnesses;
and he also found that the draft was in the handwriting of the deceased. This
defendant also referred to the proceedings of the meeting of the trust on
10.06.1994, where a suggestion was made that the legatees under the Will
should go and establish their claim in the Court of Law but he asserted that
the Will should be given effect to as, according to him, litigating against the
11
plaintiffs was equivalent to asserting a false case that the deceased had not
executed his Will and therefore, he disassociated himself from the trust.
Issues
4.4. On the pleadings of the parties, the Trial Court framed the following
issues for determination of the questions involved in the matter:-
“1.Whether the plaintiffs prove that the deceased Sangappa
bequeathed the suit properties in their favour under the will
deed dt: 20.05.1991?
2. Whether the defendants 1 to 5 prove that the Commission
Agency shop business was kept joint in the partition of 1954,
held during the life time of father of deceased Sangappa?
3. Whether the suit is not maintainable for not impleading Sri
Sangappa Pamapnna Gadadshettar Trust, Koppal, as a party
to the suit?
4. Whether the suit is not properly valued and court fee paid
is not correct?
5. Whether the plaintiffs are entitled for the relief of
declaration that the trust created under the name Sri
Sangappa Pampanna Gandshettar Trust, Koppal, is illegal,
void and not binding on them?
6. Whether the plaintiffs 1 to 3 are entitled for the relief of
declaration that they are the joint owners of suit A schedule
properties?
7. Whether the plaintiff No. 1 is entitled for the relief of
declaration that he is the owner of suit B schedule
properties?
8. Whether the plaintiff No. 2 is entitled for the relief of
declaration that he is the owner of suit C schedule
properties?
9. Whether the plaintiff No. 3 is entitled for the relief of
declaration that she is the owner of suit D schedule
properties?
10.Whether the plaintiffs are entitled for the consequential
relief of perpetual injunction against the defendants?
11.Whether the defendants are entitled for exemplary costs
of Rs. 30,000?
12. What decree or order?”
12
Evidence
4.5. In order to prove their case, the plaintiffs examined as many as 8
witnesses, the material among them being their father Sri Basetteppa (PW1); the two attesting witnesses of the Will in question Sri Radhakrishnarao
(PW-3) and Sri Ayyanagowda Hiregowdar (PW-4); and the advocate Sri
Bhusnoormath (PW-8), to whom the Will was allegedly handed over in a
sealed cover and who opened the cover in the presence of Swamiji. The
plaintiffs also produced 17 documents including Ex. P.2: the Will cancellation
deed 26.09.1990 whereby, the testator cancelled the earlier Will executed by
him in the year 1974; Ex. P.3: handwritten draft of the Will said to have been
prepared by the testator and kept in the sealed cover with the executed Will;
and Ex. P.4: the contested Will dated 20.05.1991. The defendants examined
2 witnesses and produced 16 documents.
FINDINGS OF THE TRIAL COURT
5. It is but apparent that the pivotal question in this case had been as
to whether the deceased Sangappa bequeathed the suit properties in favour
of the plaintiffs under the Will dated 20.05.1991? The Trial Court took up
issue Nos. 1 and 6 to 10 together and found that Will in question was
executed in accordance with Section 63 of the Indian Succession Act, 19256
and the same was proved as per the requirements of Section 68 of the
Indian Evidence Act, 18727
; and the plaintiffs got the rights as claimed
thereunder. The relevant aspects of the findings of the Trial Court could be
summarised as follows:
6 Hereinafter referred to as ‘the Succession Act’.
7 Hereinafter referred to as ‘the Evidence Act’.
13
5.1. The Trial Court held that all the circumstances establishing that PW8 was handed over the cover containing the Will in question and its draft and
of his opening the same before Swamiji on 29.05.1994 cannot be suspected
as he had no personal gain from the plaintiffs and had no enmity with the
defendants.
5.2. The Trial Court further held that PW-3 and PW-4 have given the
details about the Will but it was not necessary that they would meticulously
know the contents of the Will; that both have unanimously spoken about the
deceased Sangappa having shown them the typed Will, himself having read
out the contents, and having signed before them. The Trial Court yet further
observed that neither the Will was drafted nor it was got typed in the
presence of the attesting witnesses and everything was ready for execution
and therefore, any more details regarding typing of Will of the deceased were
not expected. The Trial Court found that the Will in question was duly
identified by the said witnesses as Ex. P. 4 and the signatures of Sangappa
were also identified as Ex. P. 4 (a), (b) and (c); the signature of PW-3 was at
Ex. P.4 (d) and that of PW-4 at Ex. P. 4 (f). The signatures of other two
witnesses were also identified as Ex. P. 4 (e) and Ex. P. 4 (g). Thus,
according to the Trial Court, the mode of proof as provided under Section 68
of the Evidence Act stood duly complied with.
5.3. The Trial Court also noticed and recounted various features which,
in its opinion, lend credence to the factum of existence of the Will in question.
The Trial Court observed, inter alia, that the draft of the Will was prepared in
14
the handwriting of the deceased as Ex. P.3; that PW-1 was a relative of the
deceased who had been helping the deceased in business and was
acquainted with the handwriting and signature of deceased; and thus, the
handwriting and signature were identified as per Section 47 of Evidence Act.
The Trial Court also observed that the draft was in the cover containing the
executed Will and there was no chance to open the sealed cover; and that
even if the Will did not contain all what was written in Ex. P.3, it was not a
ground to raise any suspicion.
5.4. The Trial Court further observed that the fact that the deceased had
taken help of PW-1, a distant relative, in presence of close relative like
defendant No. 1 and his sons, was sufficient to hold that there was no love
lasting between the deceased and the defendant No. 1 and his sons. The
Trial Court observed that indisputably, the earlier Will, executed in the year
1974, was cancelled in the year 1990 but therein too, the defendant No. 1
and his family had not been given anything; and the intention of the
deceased was clear that he was not willing to give anything to the defendant
No. 1 and his family. The Trial Court also referred to the fact that defendant
Nos. 2 & 3, the sisters of the deceased, did not come before the Court to
speak against the Will in question.
5.5. As regards connectivity of the deceased with the plaintiffs, the Trial
Court referred to the fact that in the admission forms of the plaintiff No. 1
pertaining to the years 1991-92 and 1993-94 for I.U.C. classes in
Gavisidddeshwar College, Koppal, the deceased had signed in place of the
15
guardian; and as per the address given in those applications, he was staying
in Warkar Galli C/o Sangappa Gadedshetter. Hence, the allegations of the
defendants that the plaintiffs were staying separately were rejected. The Trial
Court observed that even if father and mother of the plaintiffs were later on
staying separately due to difference of opinion in women-fold, the fact
remained that, prior to the year 1993, the plaintiffs and their parents were
staying with the deceased as seen by the voter lists (Exs. P.12-16) of Koppal
Town pertaining to years 1975 to 1993.
5.6. As regards the state of mind of the deceased, the Trial Court
observed that the deceased was in sound state of mind at the time of
execution of Will; and he died 3 years after making of Will and, on the day of
his demise, had gone to attend the marriage 100 kms away, which showed
that he was capable of managing himself. The Trial Court also observed that
some of the discrepancies indicated by the defendants had essentially arisen
because of self-scribing of the Will and it cannot be said that the deceased
was a feeble person.
Discrepancies/Suspicions Answered by the Trial Court:
5.7. The Trial Court also proceeded to deal with some of the discrepancies
pointed out by the defendants in the Will in question and answered the same
as follows:
5.7.1. The Trial Court observed that the discrepancy in Hindi and English
Calendar dates as found in Ex. P.3 cannot be made a ground to disbelieve
the entire Will, particularly when the date mentioned in the Will i.e.,
16
20.05.1991 was falling on Monday and the same had been the statements of
PW-3 and PW-4. This discrepancy, according to the Trial Court was of no
bearing on the substance of the matter.
5.7.2. The Trial Court further observed that absence of property numbers
cannot be a ground to hold that the Will was a forged one; and that the
location of house property either in Warkar Galli or Katarki road was
inconsequential so far as giving effect to the Will, as the deceased wanted to
give the property with the boundaries mentioned therein. Similarly, the
property shown as item number 2 in Schedule D was available with
municipal number and was admittedly belonging to the deceased Sangappa.
Therefore, according to the Trial Court, any discrepancy in particulars was of
no bearing; and the blanks were also not casting any doubt or suspicion on
the Will in question. The Trial Court further observed that certain
inconsistencies or certain improper directions may not be called as
suspicious circumstances; and that though the description of property in para
5 of the Will did not disclose the name of the legatee to whom it was
bequeathed but, that too was not a circumstance to disbelieve the entire Will.
5.7.3. The Trial Court yet further observed that non-registration of Will
cannot raise the presumption of forgery and fabrication. The Trial Court also
observed that the reason for keeping the Will secret was that the legatees
under the earlier Will were not respecting the feelings of the deceased and
hence, the deceased kept everybody guessing about the contents of his last
Will.
17
5.7.4. As regards the suspicious circumstance asserted by the defendants
that deceased had not left anything for his wife in the Will executed in the
year 1991, the Trial Court observed that when, apart from the properties
shown in the Will, the deceased was leaving other properties too, definitely
those properties would have gone to his wife and hence, not making the
provision for wife in the Will was not a ground that could be raised as
suspicion. The Trial Court also observed that in para 3 of the Will, 4 acres of
the land of Irkalgada was given to Gopur Basaveshwara Temple, which
clearly showed that the deceased had given properties to charitable
purposes also.
5.7.5. As regards entering of the names of the legatees in the Will by the
deceased by filing an application to municipality on 04.09.1993 during his life
time, the Trial Court observed that such entries were of no legal effect and do
not operate against the Will in question.
5.7.6. As regards the question raised by the defendants that even the past
events were stated in the Will as if to happen in future, the Trial Court
observed that in para 4 of the Will, the deceased had stated that Sangappa
Uttangi had promised to vacate the shop and godown in the year 1990 and
though the wording should have been different when the Will was written in
the month of May 1991, but such a fact was irrelevant because Uttangi was a
tenant and even if he had continued, that would not have affected the rights
of legatees under the Will.
18
5.8. In relation to the suspicious features pertaining to the documents in
question i.e., the draft of the Will Ex. P.3 and the deed of Will Ex. P.4, the
Trial Court observed that only the strong suspicious circumstances were
required to be explained by the propounder of the Will; and proceeded to
dismiss the suspicions suggested by the defendants, with the observations
and findings, inter alia, as follows :
5.8.1. The Trial Court observed that the loose sheets were removed from
the exercise note book and used by the deceased to write the draft but, there
was no evidence to show that the entire draft was made on one day; and the
deceased might have written some pages on some day and some pages on
some other day. After noticing that chronological numbers were not available
on such loose sheets, the Trial Court observed that the draft could be used to
read the intention and to interpret the Will Ex. P.4 but, it cannot be used to
nullify the intention of the deceased. In this sequence, the Trial Court also
observed that the persons challenging the Will were not expected to get any
property through succession because, in the event of the demise of
Sangappa alone, the properties would have gone to his wife.
5.8.2. As regards non-examination of the typist, the Trial Court observed
that it was not at all a suspicious circumstance because the Will was a secret
document and nobody, including the propounders, knew as to where the Will
was typed.
5.8.3. Though the very opening recital in the Will in question mentioned
about the likelihood of an accident but in this regard, the Trial Court observed
19
that none except deceased himself could give explanation as to what was
the intuition for him to write in the Will about accident and death in the
accident.
5.8.4. As regards the document itself (Ex. P.4), the Trial Court noticed that
page numbers 1, 2 and 5 of the Will were green coloured, whereas the
colour of page numbers 3 and 4 was not the same but observed that different
coloured sheets might have been used by the typist.
5.8.5. The Trial Court, of course, noted the features that the signature of
the testator on page number 1 of the document in question (Ex. P.4) was
made with an ink pen whereas ballpoint pen was used on the next page but,
observed in this regard that one of the witnesses had spoken that the ink pen
did not write properly so the ballpoint pen was used. The Trial Court further
observed that so far putting the signatures before the witnesses was
concerned, there was no doubt that Ex. P. 4 (a) (b) & (c) were the signatures
of the deceased, as proved in the testimonies of the attesting witnesses. The
Trial Court yet further observed that the Will was kept by the deceased in
sealed cover and this was a strong circumstance to show that the execution
of Will by the deceased cannot be suspected.
5.9. In its conclusion, the Trial Court held that from every angle, the Will
in question was natural; and the plaintiffs had discharged their burden of
proving the same and also dispelled the suspicious circumstances stated by
the defendants. The Trial Court, accordingly, held that overall reading of the
Will indicated that the deceased had written the same with an intention of
20
bequeathing the properties to the legatees. Issue Nos. 1 and 6 to 10 were,
therefore, decided in favour of the plaintiffs.
5.10. The Trial Court also returned the findings on other issues in favour
of the plaintiffs and, accordingly, decreed the suit with declaration and
injunction as noticed hereinbefore.
REVERSAL BY THE HIGH COURT
6. In appeal by the contesting respondents against the judgment and
decree so passed by the Trial Court, the High Court took note of the material
on record as also the rival contentions and framed two points for
determination as follows:
“i) Whether the plaintiffs proved that the deceased Sangappa
bequeathed his properties in their favour under the will dated
20.5.1991?
ii) Whether the trial Court was justified in holding the will
dated 20.5.1991 executed by Sangappa as genuine or not?”
6.1. In relation to both the points aforesaid, which essentially revolved
around the question of genuineness of the Will in question, the High Court
took note of the principles exposited by this Court in the cases of Smt. Indu
Bala Bose and Ors. v. Manindra Chandra Bose and Anr.: (1982) 1 SCC
20 and Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.: (1977) 1 SCC
369 and thereafter, proceeded to examine the basic contentions of the
defendants that by its very nature, the Will appeared to be a fabricated
document. After taking note of the discrepancies in the document itself and
other unnatural circumstances as also after analysing the evidence of the
star witnesses PW-4 and PW-8, the High Court found that the Trial Court had
21
erred in deciding the relevant issue in favour of the plaintiffs and, while
reversing the findings of the Trial Court, held that the contested Will was not
a genuine one. As the consequence, the judgment and decree passed by
the Trial Court were set aside. Of course, as regards the question of
possession, the High Court left it open for the contesting defendants to take
recourse to appropriate remedies in accordance with law.
6.2. As regards discrepancies in the document in question, about the
difference of the colour of the three sheets used and in the alleged
signatures of the testator, the High Court meticulously examined the
document and recorded its observations and findings as follows:
“24. Keeping the observations of the Hon’ble Supreme
Court in view, the WILL would have to be looked into since it
has been strenuously contended by the learned senior
counsel for the appellant that the very sight of the WILL
would indicate that the same has been fabricated. The
original of the WILL dated 20.5.1991 is marked as Ex.P4
which is available in the records secured from the Court
below. The same is typed in Kannada script on three sheets
which are normally used for typing papers which are
submitted to Court. The colour of the three sheets are not
similar. The first sheet is light green, the second sheet is
very light in colour (almost white) and the third sheet is
darker among the three. At the outset, it is clear that all
the three sheets are not from the same stock and if the
same was got typed from a typist in a normal course as
claimed, the sheets could not have been different from
one another. The alleged signature of the testator is found at
the bottom of each page on the facing side only. Though
there is typed matter on the reverse side at pages 2 and
4 the same does not contain signatures. Even the
signatures found on the facing sheet are not uniformly
affixed. On first page the signature is more than one inch
below the last line of the typed matter and has the
appearance of a prefixed signature. The second sheet (page3) contains signature near to the typed matter. The last sheet
(page 5) has the signature which is at a distance of about an
22
inch below the last line of the typed matter. The name of the
alleged testator typed below the signature has all indications
of the same being typed below an existing signature. This is
evident from the fact that the name would not have been
typed so low from the typed matter, particularly when the
place ‘Koppal’ and date typed on the left side of the sheet is
at a lesser distance from the typed matter and are not in
alignment with each other. The space provided for signature
of four witnesses seems very unnatural and even in that
circumstance the name of the alleged testator would not have
been typed so low if it was a natural typing on a blank sheet.
The first page and last page have been signed using
fountain ink pen but the pen used is not similar to one
another. The second sheet is signed by a ballpoint pen.
The pattern of signatures if compared with the earlier
admitted WILL dated 29.6.1990 which was registered but
later revoked, which is marked as Ex.P1 would indicate
uniform pattern immediately below the written matter without
any gap and even a small correction has been attested,
whereas in the propounded WILL, blanks have been left. It
does not require a detective like Sherlock Holmes to
notice these discrepancies which are visible to naked
eye and the very sight of the WILL does not inspire
confidence that it could be genuine.”
(emphasis supplied)
6.3. The unusual feature of the use of different instruments while making
three signatures on the same document came up for its fuller exposition
when the High Court proceeded to examine the explanation sought to be
furnished by PW–4. While rejecting the testimony of this witness PW-4, the
High Court observed and found, inter alia, as under: –
“27. In this background, the discrepancies in the
signatures and the different pens which were used also
assumes importance. In this regard P.W.-4, Sri Ayyanagowda
Hiregowdar who claims to be one of the attesting witness of
the WILL in his cross examination admitted that Ex.P4(a) is
the signature with ink pen, except Ex.P4(c) being the
signature with ball pen and again signature Ex.P4(b) is by ink
pen and he has also stated that the signatures in Ex.P4(a)
and (b) have been made by the very same pen. He has
further stated that both the pens were available with the
23
testator. He has sought to explain the same by stating that
while signing the third page the ink pen was not working, this
explanation is palpably false and cannot be believed for the
reason that the first page has been signed by fountain ink
pen and the third page again has been signed by the fountain
ink pen whereas the second page has been signed by a
ballpoint pen. Hence this would not only indicate the incorrect
statement but would certainly indicate the unnatural
circumstances that a person would be so careless while
signing a document in the nature of a WILL which is fully
known to him that it is a document regarding which he would
not be available to explain the situation. One other reason for
which the said explanation cannot be believed is that if the
fountain ink pen used by the testator was really not
working after affixing the signature on the first page, it
cannot be understood as to how he could have signed
the second sheet with the ballpoint pen and thereafter
once again sign the third sheet with the fountain ink pen
more so, when the ink pen used in the first sheet and the
third sheet are not similar to one another. That apart the
signatures of the so called attesting witnesses to the WILL
would indicate that the same have been made with fountain
ink pen and the said ink of these signatures are much fresher
than the signatures of the alleged testator…..”
(emphasis supplied)
6.4. The High Court also rejected the contentions of the plaintiffs that the
alleged discrepancies could not take away the validity of the Will as it was
produced by PW-8 and the sealed envelope was opened in the presence of
Swamiji. The High Court pointed out that the very assertion, about availability
of the handwritten draft of the proposed Will EX. P.3 in the sealed envelope
along with the alleged executed Will EX. P.4, was that of another unnatural
feature because if the testator had himself completed and executed the Will
in the presence of witnesses, there was no reason to place the incomplete
handwritten draft in the envelope. The High Court proceeded to observe that
such feature gave strong indication that the plaintiffs had been able to place
24
their hands on an incomplete draft and have fabricated the Will using blank
sheets signed by the testator at different times; and only to make it appear
authentic, the story of the envelope containing the draft was weaved. While
rejecting the story about the availability of the sealed envelope with the
advocate PW-8 and its opening before Swamiji, the High Court also pointed
out that the advocate concerned, PW-8, was known to the testator as also to
the father of the plaintiffs PW-1 inasmuch as he had indeed appeared in his
professional capacity on behalf of PW-1. Moreover, and as noticed, in regard
to the assertion of the plaintiffs and the witnesses that the cover containing
the Will was opened before Swamiji, the High Court observed that the said
Swamiji was a very important and material witness in this case but the
plaintiffs never took any steps to get his statement recorded.
6.5. After taking note of the aforesaid inexplicable features, unnatural
circumstances, unreliability of the witnesses of the plaintiffs and the fact that
no steps were taken by the plaintiffs to get recorded the statements of a
material witness, namely the said Swamiji, the High Court also took note of
the approach of the Trial Court and did not approve the same while
observing, inter alia, as under:
“28. The said discrepancies though noticed have been
sought to be explained by the learned Judge of the Court
below in a manner as though to overcome the same wherein
the learned Judge states that the difference in the colour of
the papers cannot be suspected because it could have been
used by the typist. The learned Judge further holds that it
cannot be suspected since the said papers contain the
signatures and the signatures have been identified by the
witnesses. As noticed by us above, the very signatures itself
are doubtful that it has been affixed after the matter was
25
typed and the explanation given by the witnesses are even
more doubtful and as such the learned Judge could not have
lightly brushed aside these aspects.”
6.6. In view of the above, the High Court allowed the appeal and set
aside the judgment and decree of the Trial Court. Hence, the unsuccessful
plaintiffs have preferred this appeal.
RIVAL CONTENTIONS
7. Assailing the judgement of the High Court, learned senior counsel
for the plaintiff–appellants has strenuously argued that the High Court has
seriously erred in setting aside the findings of the Trial Court, which were
based on due appreciation of the consistent evidence of the material
witnesses. The learned counsel has contended that the facts are amply
established on record that on 20.05.1991, the testator executed the Will in
question in accordance with the provisions of Section 63 of the Succession
Act and Section 68 of the Evidence Act with his signatures and with
attestation by more than two witnesses who had seen the testator signing the
Will. According to the learned counsel, the testator was in sound and
disposing state of mind while voluntarily executing the Will, as required by
Section 59 of Indian Succession Act. PW-3 and PW-4 deposed before the
Trial Court that the testator himself showed the typed Will and put his
signatures on the same; and the Will was duly attested by PW-3 and PW-4.
Hence, the requirements of Section 68 of the Evidence Act are fulfilled. The
learned counsel has referred to the decision in the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma and Ors: AIR 1959 SC 443 and has
26
contended that with all the legal requirements being fulfilled and there being
no reason to ignore or disbelieve the Will, the Trial Court had rightly decreed
the suit and the High Court has not been justified in upsetting the considered
decision of the Trial Court.
7.1. The learned senior counsel has contended that the appellants have
dispelled all suspicious circumstances qua the Will in question; that as per
Section 74 of the Succession Act, it is not necessary that technical words be
used in the Will; and what is necessary is only that the intention of the
testator ought to be set out in the Will. According to the learned counsel, Ex.
P3, the handwritten draft, makes the intention of the testator clear that he
wanted to bequeath his properties to the appellants. Further, PW-5 and
defendant No. 7 have clearly identified the signature of the testator. The
learned counsel would urge that with the intention of the testator having been
amply established on record, some blanks in the Will or some other minor
inconsistencies cannot take away the substance thereof, particularly when
the properties could be identified with the help of the boundaries. The
learned counsel has referred to the decisions in Smt. Indu Bala Bose and
Ors. v. Manindra Chandra Bose and Anr.: (1982) 1 SCC 20 and P.P.K.
Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors: 1995 Supp
(2) SCC 664. The learned counsel has further contended that exclusion of
any legal heir from the Will is not a suspicious circumstance and has referred
to the decision in Uma Devi Nambiar and Ors. v. T.C. Sidhan: (2004) 2
SCC 321.
27
7.2. The learned senior counsel has further strenuously argued that it
had not been the contention of the respondents that the document in
question was drawn on blank signed papers and the observation of the High
Court that the document in question was drawn on blank signed papers does
not find support in the evidence and pleadings on record. In this regard, the
learned counsel has relied upon the decision in Mahesh Kumar (dead) by
LRs v. Vinod Kumar and Ors: (2012) 4 SCC 387.
7.3. In the last and in the alternative, the learned senior counsel has
argued that if at all the High Court found the want of requisite evidence, the
proper course was to exercise the power of remand under the provisions of
Order XLI Rule 23-A CPC. The learned counsel has contended that the High
Court being the first Court of Appeal, ought to have given the opportunity to
the appellants to adduce proper additional evidence, considering the fact that
the findings were being made on suspicious circumstances other than those
raised by the defendants in their pleadings and evidence. The learned
counsel has referred to and relied upon the decision in the case of Mohan
Kumar v. State of Madhya Pradesh and Ors.: (2017) 4 SCC 92.
8. Per contra, learned counsel for the contesting respondents has duly
supported the judgement of the High Court with reference to the reasonings
and observations therein. The learned counsel has also argued that right
from the beginning, it had been the case of the respondents that the
propounded Will was nothing but a fabricated document and it is incorrect
to say that particular objection had not been taken by the respondents. The
28
learned counsel has referred to the decision in K. Laxmanan v. Thekkayil
Padmini and Ors.: (2009) 1 SCC 354.
POINTS FOR DETERMINATION
9. In view of the submissions made, the following points essentially arise
for determination in this case:
1. As to whether the High Court was right in reversing the decision of
the Trial Court and in holding that the contested Will was not a genuine
document?
2. As to whether the High Court ought to have considered remanding
the case to the Trial Court?
WILL – PROOF AND SATISFACTION OF THE COURT
10. As noticed, the basic point for determination in this case is as to
whether the High Court was justified in taking a view contrary than that of
the Trial Court and in holding that the Will propounded by the plaintiffs is not
the genuine Will of the deceased Sangappa. Determination of this point,
obviously, revolves around the legal principles applicable to the making of a
testamentary document like Will, its proof, and its acceptance by the Court.
10.1. The Will being a rather solemn document that comes into operation
after the death of the testator, special provisions are made in the statutes
for making of a Will and for its proof in a Court of law. Section 59 of the
Succession Act provides that every person of sound mind, not being a
minor, may dispose of his property by Will. A Will or any portion of a Will,
the making of which has been caused by fraud or coercion or by any such
importunity that has taken away the free agency of the testator, is declared
29
to be void under Section 61 of the Succession Act; and further, Section 62
of the Succession Act enables the maker of a Will to make or alter the same
at any time when he is competent to dispose of his property by Will.
Chapter III of Part IV of the Succession Act contains the provisions for
execution of unprivileged Wills (as distinguished from privileged Wills
provided for in Chapter IV). Section 63 of the Succession Act, relevant for
the present purpose, reads as under: –
“63. Execution of unprivileged Wills.-Every testator,
not being a soldier employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged, or a
mariner at sea, shall execute his Will according to the
following rules:-
(a) The testator shall sign or shall affix his mark to the
Will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so placed
that it shall appear that it was intended thereby to give effect
to the writing as a Will.
(c)The Will shall be attested by two or more witness, each of
whom has seen the testator sign or affix his mark to the Will
or has seen some other person sign the Will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgment of his signature or mark,
or the signature of such other person; and each of the
witnesses shall sign the Will in the presence of the testator,
but it shall not be necessary that more than one witness be
present at the same time, and no particular form of
attestation shall be necessary.”
10.2. Elaborate provisions have been made in Chapter VI of the
Succession Act, in Sections 74 to 111, for construction of Wills which, in
their sum and substance, make the intention of legislature clear that any
irrelevant misdescription or error is not to operate against the Will; and
30
approach has to be to give effect to a Will once it is found to have been
executed in the sound state of mind by the testator while exercising his own
free will. However, when the Will is surrounded by suspicious
circumstances, the Court would expect that the legitimate suspicion should
be removed before the document in question is accepted as the last Will of
the testator.
10.3. As noticed, as per Section 63 of the Succession Act, inter alia,
requires that the Will ought to be attested by two or more witnesses. Hence,
any document propounded as a Will cannot be used as evidence unless at
least one attesting witness has been examined for the purpose of proving
its execution, if such witness is available and is capable of giving evidence
as per the requirements of Section 68 of the Evidence Act, that reads as
under: –
“68. Proof of execution of document required by law
to be attested.-If a document is required by law to be
attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject
to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being
a Will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it purports to
have been executed is specifically denied.”
10.4. Learned Counsel for the appellant has referred to the decision in the
case of H. Venkatachala Iyenger (supra). It is noticed that in paragraphs 18
to 22 of the said decision, this Court has synthesised and condensed
31
almost the entire panorama relating with execution and proof of a Will and
the guiding principles for a Court while examining the document which is
propounded as a Will. These passages in the said 3-Judge Bench decision
of this Court could be usefully reproduced as under: –
“18. What is the true legal position in the matter of proof of
wills? It is well-known that the proof of wills presents a
recurring topic for decision in courts and there are a large
number of judicial pronouncements on the subject. The party
propounding a will or otherwise making a claim under a will is
no doubt seeking to prove a document and, in deciding how it
is to be proved, we must inevitably refer to the statutory
provisions which govern the proof of documents. Sections 67
and 68 of the Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be signed by
any person, the signature of the said person must be proved
to be in his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of experts
and of persons acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with the proof
of the execution of the document required by law to be
attested; and it provides that such a document shall not be
used as evidence until one attesting witness at least has
been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor,
may dispose of his property by will and the three illustrations
to this section indicate what is meant by the expression "a
person of sound mind" in the context. Section 63 requires
that the testator shall sign or affix his mark to the will or it
shall be signed by some other person in his presence and by
his direction and that the signature or mark shall be so made
that it shall appear that it was intended thereby to give effect
to the writing as a will. This section also requires that the will
shall be attested by two or more witnesses as prescribed.
Thus, the question as to whether the will set up by the
propounder is proved to be the last will of the testator
has to be decided in the light of these provisions. Has
the testator signed the will? Did he understand the
32
nature and effect of the dispositions in the will? Did he
put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions
which determines the nature of the finding on the
question of the proof of wills. It would prima facie be true
to say that the will has to be proved like any other document
except as to the special requirements of attestation
prescribed by Section 63 of the Indian Succession Act. As in
the case of proof of other documents so in the case of proof
of wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test of the
satisfaction of the prudent mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the testator, and
so, when it is propounded or produced before a court, the
testator who has already departed the world cannot say
whether it is his will or not; and this aspect naturally
introduces an element of solemnity in the decision of the
question as to whether the document propounded is proved
to be the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the court will start
on the same enquiry as in the case of the proof of
documents. The propounder would be called upon to show
by satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a sound
and disposing state of mind, that he understood the nature
and effect of the dispositions and put his signature to the
document of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested, satisfactory
and sufficient to prove the sound and disposing state of the
testator's mind and his signature as required by law, courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the propounder
can be taken to be discharged on proof of the essential
facts just indicated.
20. There may, however, be cases in which the execution
of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator may be
very shaky and doubtful and evidence in support of the
propounder's case that the signature in question is the
signature of the testator may not remove the doubt created
by the appearance of the signature; the condition of the
testator's mind may appear to be very feeble and debilitated;
and evidence adduced may not succeed in removing the
33
legitimate doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be unnatural,
improbable or unfair in the light of relevant circumstances; or,
the will may otherwise indicate that the said dispositions may
not be the result of the testator's free will and mind. In such
cases the court would naturally expect that all legitimate
suspicions should be completely removed before the
document is accepted as the last will of the testator. The
presence of such suspicious circumstances naturally
tends to make the initial onus very heavy; and, unless it
is satisfactorily discharged, courts would be reluctant to
treat the document as the last will of the testator. It is true
that, if a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the execution of the
will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may
raise a doubt as to whether the testator was acting of his own
free will in executing the will, and in such circumstances, it
would be a part of the initial onus to remove any such
legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we
have just referred, in some cases the wills propounded
disclose another infirmity. Propounders themselves take a
prominent part in the execution of the wills which confer on
them substantial benefits. If it is shown that the propounder
has taken a prominent part in the execution of the will and
has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory evidence.
It is in connection with wills that present such suspicious
circumstances that decisions of English courts often mention
the test of the satisfaction of judicial conscience. It may be
that the reference to judicial conscience in this connection is
a heritage from similar observations made by ecclesiastical
courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the word
“conscience” in this context would, in our opinion, be purely
technical and academic, if not pedantic. The test merely
emphasizes that, in determining the question as to whether
an instrument produced before the court is the last will of the
testator, the court is deciding a solemn question and it must
be fully satisfied that it had been validly executed by the
testator who is no longer alive.
34
22. It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on wills,
no hard and fast or inflexible rules can be laid down for the
appreciation of the evidence. It may, however, be stated
generally that a propounder of the will has to prove the
due and valid execution of the will and that if there are
any suspicious circumstances surrounding the
execution of the will the propounder must remove the
said suspicions from the mind of the court by cogent
and satisfactory evidence. It is hardly necessary to add that
the result of the application of these two general and broad
principles would always depend upon the facts and
circumstances of each case and on the nature and quality of
the evidence adduced by the parties. It is quite true that, as
observed by Lord Du Parcq in Harmes v. Hinkson:(1946) 50
C.W.N. 895, "where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close his
mind to the truth". It would sound platitudinous to say so, but
it is nevertheless true that in discovering truth even in such
cases the judicial mind must always be open though vigilant,
cautious and circumspect.”
(emphasis supplied)
10.5. Learned Counsel for the appellant has referred to paragraphs 7 and
8 of the decision of this Court in the case of Indu Bala Bose (supra) which
may also be taken note of as under: –
“7. This Court has held that the mode of proving a Will does
not ordinarily differ from that of proving any other document
except to the special requirement of attestation prescribed in
the case of a Will by Section 63 of the Succession Act. The
onus of proving the Will is on the propounder and in the
absence of suspicious circumstances surrounding the
execution of the will, proof of testamentary capacity and the
signature of the testator as required by law is sufficient to
discharge the onus. Where however there are suspicious
circumstances, the onus is on the propounder to explain
them to the satisfaction of the court before the court
accepts the Will as genuine. Even where circumstances
35
give rise to doubts, it is for the propounder to satisfy the
conscience of the court. The suspicious circumstances may
be as to the genuineness of the signatures of the testator, the
condition of the testator's mind, the dispositions made in the
Will being unnatural, improbable or unfair in the light of
relevant circumstances, or there might be other indications in
the Will to show that the testator's mind was not free. In such
a case the court would naturally expect that all legitimate
suspicions should be completely removed before the
document is accepted as the last Will of the testator. If the
propounder himself takes a prominent part in the execution of
the will which confers a substantial benefit on him, that is also
a circumstance to be taken into account, and the propounder
is required to remove the doubts by clear and satisfactory
evidence. If the propounder succeeds in removing the
suspicious circumstances the court would grant probate,
even if the will might be unnatural and might cut off wholly or
in part near relations.: AIR 1964 SC 529
8 . Needless to say that any and every circumstance is
not a “suspicious” circumstance. A circumstance would
be “suspicious” when it is not normal or is not normally
expected in a normal situation or is not expected of a
normal person.”
(emphasis supplied)
10.6. In the case of P.P.K. Gopalan Nambiar (supra), the Will in question
was a registered one and the endorsement made by the Registrar showed
that the testator was in a sound disposing state of mind and the Will was
executed out of the testator’s free will. It was also found that the testator died
8 years after registration of the Will and though legatee propounded the Will in
his written statement, but no plea was taken by the opposite party to question
the validity of the Will. The Will was duly proved with examination of the
attesting witness. In the given circumstances, the fact that whole of the estate
was given to one son under the Will while depriving two daughters, was not
36
considered to be a suspicious circumstance. On the requisite approach, this
Court said as under:-
“5. Under these circumstances, the suspicion which excited
the mind of the District Munsif is without any basis and he
picked them from his hat without fact-foundation. The
Subordinate Judge had rightly considered all the
circumstances and upheld the will. The High Court, without
examining the evidence, by merely extracting legal position
set out by various decisions of this Court has upset the
finding of the fact recorded by the Subordinate Judge in one
sentence. It is trite that it is the duty of the propounder of the
will to prove the will and to remove all the suspected features.
But there must be real, germane and valid suspicious
features and not fantasy of the doubting mind.”
(emphasis supplied)
10.7. In the case of Uma Devi Nambiar (supra), this Court reviewed the
case law dealing with the Will to a large extent and, while referring to the
Constitution Bench decision of this Court in the case of Shashi Kumar
Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964 SC
529, observed that merely because the natural heirs have either been
excluded or lesser share had been given to them, by itself, will not be
considered to be a suspicious circumstance. This Court observed, inter alia,
as under:-
“15. Section 63 of the Act deals with execution of unprivileged
Wills. It lays down that the testator shall sign or shall affix his
mark to the Will or it shall be signed by some other person in
his presence and by his direction. It further lays down that the
Will shall be attested by two or more witnesses, each of
whom has seen the testator signing or affixing his mark to the
Will or has seen some other person sign the Will, in the
presence and by the direction of the testator and each of the
witnesses shall sign the Will in the presence of the testator.
Section 68 of the Indian Evidence Act, 1872 (in short the
“Evidence Act”) mandates examination of one attesting
witness in proof of a Will, whether registered or not. The law
37
relating to the manner and onus of proof and also the duty
cast upon the court while dealing with a case based upon a
Will has been examined in considerable detail in several
decisions of this Court…….A Constitution Bench of this Court
in Shashi Kumar Banerjee's case succinctly indicated the
focal position in law as follows: (AIR p. 531, para 4)
"The mode of proving a Will does not ordinarily differ
from that of proving any other document except as to
the special requirement of attestation prescribed in the
case of a Will by Section 63 of the Indian Succession
Act. The onus of proving the Will is on the propounder
and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of
testamentary capacity and the signature of the testator
as required by law is sufficient to discharge the onus.
Where however there are suspicious circumstances, the
onus is on the propounder to explain them to the
satisfaction of the court before the court accepts the Will
as genuine. Where the caveator alleges undue
influence, fraud and coercion, the onus is on him to
prove the same. Even where there are no such pleas
but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court. The
suspicious circumstances may be as to the genuineness
of the signature of the testator, the condition of the
testator's mind, the dispositions made in the Will being
unnatural, improbable or unfair in the light of relevant
circumstances or there might be other indications in the
Will to show that the testator's mind was not free. In
such a case the court would naturally expect that all
legitimate suspicion should be completely removed
before the document is accepted as the last Will of the
testator. If the propounder himself takes part in the
execution of the Will which confers a substantial benefit
on him, that is also a circumstance to be taken into
account, and the propounder is required to remove the
doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious
circumstances the court would grant probate, even if the
Will might be unnatural and might cut off wholly or in
part near relations."
16. A Will is executed to alter the ordinary mode of
succession and by the very nature of things it is bound to
result in earlier reducing or depriving the share of natural
heirs. If a person intends his property to pass to his natural
38
heirs, there is no necessity at all of executing a Will. It is true
that a propounder of the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs have either been
excluded or a lesser share has been given to them, by itself
without anything more, cannot be held to be a suspicious
circumstance specially in a case where the bequest has been
made in favour of an offspring. As held in P.P.K. Gopalan
Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2
SCR 585, it is the duty of the propunder of the Will to remove
all the suspected features, but there must be real, germane
and valid suspicious features and not fantasy of the doubting
mind. It has been held that if the propounder succeeds in
removing the suspicious circumstances, the court has to give
effect to the Will, even if the Will might be unnatural in the
sense that it has cut off wholly or in part near relations. ……
In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee
(dead) by LRs. and Ors.: AIR 1995 SC 1684, it was observed
that the circumstance of deprivation of natural heirs should
not raise any suspicion because the whole idea behind
execution of the Will is to interfere with the normal line of
succession and so, natural heirs would be debarred in every
case of Will. Of course, it may be that in some cases they are
fully debarred and in some cases partly.”
10.8. In the case of Mahesh Kumar (supra), this Court indicated the error
of approach on the part of High Court while appreciating evidence relating
to the Will in the following:-
“44. The issue which remains to be examined is whether the
High Court was justified in coming to the conclusion that the
execution of the will dated 10-2-1992 was shrouded with
suspicion and the appellant failed to dispel the suspicion? At
the outset, we deem it necessary to observe that the learned
Single Judge misread the statement of Sobhag Chand (DW3)
and recorded something which does not appear in his
statement. While Sobhag Chand categorically stated that he
had signed as the witness after Shri Harishankar had signed
the will, the portion of his statement extracted in the
impugned judgment gives an impression that the witnesses
had signed even before the executant had signed the will.
45. Another patent error committed by the learned Single
Judge is that he decided the issue relating to validity of the
will by assuming that both the attesting witnesses were
39
required to append their signatures simultaneously. Section
63(c) of the 1925 Act does not contain any such requirement
and it is settled law that examination of one of the attesting
witnesses is sufficient. Not only this, while recording an
adverse finding on this issue, the learned Single Judge
omitted to consider the categorical statements made by DW
3 and DW 4 that the testator had read out and signed the will
in their presence and thereafter they had appended their
signatures.
46. The other reasons enumerated by the learned Single
Judge for holding that the execution of will was highly
suspicious are based on mere surmises/conjectures. The
observation of the learned Single Judge that the possibility of
obtaining signatures of Shri Harishankar and attesting
witnesses on blank paper and preparation of the draft by Shri
S.K. Agarwal, Advocate on pre-signed papers does not find
even a semblance of support from the pleadings and
evidence of the parties. If Respondent 1 wanted to show that
the will was drafted by the advocate after Shri Harishankar
and attesting witnesses had signed blank papers, he could
have examined or at least summoned Shri S.K. Agarwal,
Advocate, who had represented him before the Board of
Revenue. …..”
10.9. In the case of K. Laxmanan (supra), this Court, with reference to the
settled principles including those in the case of Shashi Kumar Banerjee
(supra) re-emphasised on the requirement that the propounder has to prove
the legality of execution of the Will as also the genuineness thereof by
proving the testamentary capacity of the testator as also his signatures and
further by proving absence of suspicious circumstances. This Court, inter alia,
said,-
“18……The propounder has to prove the legality of the
execution and genuineness of the said will by proving
absence of suspicious circumstances surrounding the said
will and also by proving the testamentary capacity and the
signature of the testator. Once the same is proved, it could be
said that the propounder has discharged the onus.
40
19. When there are suspicious circumstances regarding the
execution of the will, the onus is also on the propounder to
explain them to the satisfaction of the court and only when
such responsibility is discharged, the court would accept the
will as genuine. Even where there are no such pleas, but
circumstances give rise to doubt, it is on the propounder to
satisfy the conscience of the court. Suspicious circumstances
arise due to several reasons such as with regard to
genuineness of the signature of the testator, the conditions of
the testator's mind, the dispositions made in the will being
unnatural, improbable or unfair in the light of relevant
circumstances or there might be other indications in the will
to show that the testator's mind was not free. In such a case,
the court would naturally expect that all legitimate suspicion
should be completely removed before the document is
accepted as the last will of the testator…..”
10.9.1. In K. Laxmanan (supra), this Court also explained the principles
governing the pleadings in such matters while observing, inter alia, as
under:–
“28. It is however established in the present case that the
issue of validity of the execution of both the deed of gift and
deed of will was taken up by the respondent-plaintiff and
specifically denied in the affidavits filed in respect of the
injunction applications. The parties have also gone to trial
knowing fully well that execution of both these
documents is under challenge. Parties knowing fully the
aforesaid factual position led their evidence also to
establish the legality and validity of both the documents.
In that view of the matter, it cannot be said that the said
document should be deemed to be admitted by the
plaintiff as no replication was filed by the plaintiff.”
(emphasis supplied)
10.10. We may also usefully refer to the principles enunciated in the case
of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, which
were duly taken note of by the High Court in its impugned judgement, as
follows: –
41
“9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an
adversary proceeding becomes in such cases a matter of the
court's conscience and then the true question which arises
for consideration is whether the evidence led by the
propounder of the will is such as to satisfy the
conscience of the court that the will was duly executed
by the testator. It is impossible to reach such satisfaction
unless the party which sets up the will offers a cogent and
convincing explanation of the suspicious circumstances
surrounding the making of the will.”
(emphasis supplied)
11. For what has been noticed hereinabove, the relevant principles
governing the adjudicatory process concerning proof of a Will could be
broadly summarised as follows:–
1. Ordinarily, a Will has to be proved like any other document; the
test to be applied being the usual test of the satisfaction of the
prudent mind. Alike the principles governing the proof of other
documents, in the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required
to be attested, it cannot be used as evidence until at least one
attesting witness has been called for the purpose of proving its
execution, if there be an attesting witness alive and capable of
giving evidence.
3. The unique feature of a Will is that it speaks from the death of
the testator and, therefore, the maker thereof is not available for
deposing about the circumstances in which the same was executed.
42
This introduces an element of solemnity in the decision of the
question as to whether the document propounded is the last Will of
the testator. The initial onus, naturally, lies on the propounder but the
same can be taken to have been primarily discharged on proof of
the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by
suspicious circumstances stands on a different footing. The
presence of suspicious circumstances makes the onus heavier on
the propounder and, therefore, in cases where the circumstances
attendant upon the execution of the document give rise to suspicion,
the propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges
fraud, undue influence, coercion et cetera in regard to the execution
of the Will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as to whether the
Will had indeed been executed by the testator and/or as to whether
the testator was acting of his own free will. In such eventuality, it is
again a part of the initial onus of the propounder to remove all
reasonable doubts in the matter.
6. A circumstance is “suspicious” when it is not normal or is ‘not
normally expected in a normal situation or is not expected of a
43
normal person’. As put by this Court, the suspicious features must
be ‘real, germane and valid’ and not merely the ‘fantasy of the
doubting mind.’
7. As to whether any particular feature or a set of features qualify
as “suspicious” would depend on the facts and circumstances of
each case. A shaky or doubtful signature; a feeble or uncertain mind
of the testator; an unfair disposition of property; an unjust exclusion
of the legal heirs and particularly the dependants; an active or
leading part in making of the Will by the beneficiary thereunder et
cetera are some of the circumstances which may give rise to
suspicion. The circumstances above-noted are only illustrative and
by no means exhaustive because there could be any circumstance
or set of circumstances which may give rise to legitimate suspicion
about the execution of the Will. On the other hand, any of the
circumstance qualifying as being suspicious could be legitimately
explained by the propounder. However, such suspicion or suspicions
cannot be removed by mere proof of sound and disposing state of
mind of the testator and his signature coupled with the proof of
attestation.
8. The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the Will of the testator is
surrounded by suspicious circumstance/s. While applying such test,
the Court would address itself to the solemn questions as to whether
44
the testator had signed the Will while being aware of its contents
and after understanding the nature and effect of the dispositions in
the Will?
9. In the ultimate analysis, where the execution of a Will is
shrouded in suspicion, it is a matter essentially of the judicial
conscience of the Court and the party which sets up the Will has to
offer cogent and convincing explanation of the suspicious
circumstances surrounding the Will.
SUSPICIOUS CIRCUMSTANCES/FEATURES CONCERNING THE WILL
IN QUESTION
12. Having considered the present matter in its totality while keeping the
principles aforesaid in view, we have not an iota of doubt that the High
Court has examined the matter in its correct perspective and there had
been substantial and material reasons for which, the decision of the Trial
Court could not have been upheld; and the High Court has rightly reversed
the same.
13. In summation of the lengthy discussion of the Trial Court, it could be
noticed that some of the major factors which weighed with the Trial Court in
rejecting the objections of the contesting defendants against the Will in
question had been: (i) that the testator Sangappa was not having warmth of
relations with defendant No. 1 and his family and was not willing to give
anything to them; (ii) that even in the earlier Will of the year 1974,
Sangappa had not bequeathed any property to the contesting defendants;
(iii) that the plaintiffs, the grand–nephews of testator’s wife, were residing
45
with the testator; (iv) that the father of the plaintiffs was associated with the
testator in his business and other dealings; (v) that the attesting witnesses
were only the customers of the testator and were naturally chosen as
independent persons to stand as witnesses to the Will; (vi) that the Will in
question was in possession of PW-8 and was opened by him in the
presence of Swamiji; and (vii) that PW-8 had neither any animosity with the
defendants nor was gaining anything from the Will.
13.1 As regards the discrepancies indicated by the defendants, the Trial
Court took the view that mere misdescription of the property was of no
effect, particularly when its identification was not in doubt; and for this very
reason, the Trial Court found the blank spaces as regards the particulars of
the property to be of no effect. As regards mentioning of a past event as
something to happen in future, the Trial Court found that it had no adverse
bearing on the validity of the Will because existence of a tenant in the
property was not going to affect the rights of the testator as also his
legatees. As regards the statement in the Will about likelihood of accident,
the Trial Court observed that the reason for making such a recital was
known to the testator alone. On the suspicious factors concerning the
document itself, the Trial Court observed that use of the sheets of paper of
different colours could be attributed only to the typist who was not known to
propounders. The Trial Court further found that the inconsistency regarding
the dates from the Hindi Calendar and English Calendar were of no effect
because the day of execution of the Will was Monday, as stated by the
46
witnesses. Further, the Trial Court found that the making of signatures by
the testator by different pens on different pages was duly explained by the
witness PW-4.
14. The High Court, on the other hand, felt dissatisfied with the document
itself and found no explanation on record about numerous unnatural
circumstances dilated upon and discussed by it in some of the passages
extracted hereinbefore. Having examined the material placed on record, in
our view, the observations and findings of the High Court remain
unexceptionable.
15. Taking up the document itself, it is not in dispute that the same is
carrying 5 typed pages on 3 different sheets of papers, which are definitely
not of the same colour. It had been noticed by the Trial Court as also by the
High Court, and it remains indisputable, that the said papers are of different
colours and have not been picked up from the same stack. Use of 3
different sheets of paper for typing a document of Will running in 5 pages
(with first and second paper being typed on both sides) is, in any case, not
a normal action by a normal person in normal circumstances. True it is that
this aspect could have been cleared only by the typist and the propounders
are not expected to know the typist, particularly when they had not
participated in execution and attestation of the document but, this
circumstance is enough to indicate that the matter calls for closer scrutiny
with due regard to all the surrounding factors because, ordinarily, such
47
document would be typed in one sitting and on the papers drawn from the
same stack.
15.1. Proceeding further, another feature surfaces, which was found by
the High Court (though not discussed by the Trial Court). This feature is
about the placement of the signatures of the testator on 3 pages, where it is
apparent that on the first and the last page, the distance of signatures from
the typewritten contents is excessive than usual or natural. It is not in
dispute that this feature also emanates from a bare look at the document in
question.
15.2. The aforementioned two features, by themselves, may not be of
material bearing but this much is clear that they stand at contradistinction to
the ordinary course of dealings and give rise to legitimate suspicions about
the genuineness of document. Now, the suspicion arising from the aforesaid
two features is confounded by another factor that though the document
carries 3 signatures of the testator, the same are not made from the same
pen. It has been noticed, and again it remains indisputable, that while the
signature of the testator at page number 1 are from an ink pen, that at page
number 3 is from a ballpoint pen and then, again at page number 5, it is
from an ink pen. The witness PW-4 has attempted to say that for the ink
pen being not working properly, ballpoint pen was used. It sounds utterly
unnatural and remains inexplicable that if the ink pen was not working and
the second signature was made from a ballpoint pen, as to how and why
the third signature, that is, the last one, was again made from another ink
48
pen? It had not been the explanation of the attesting witnesses that after
making the signature at page number 3, the ballpoint pen also stopped
working and, therefore, another ink pen was used for making the third
signature. We may observe that even when the possibility of the testator
using different pens or instruments for his signatures on different pages of
the same document is not ruled out altogether and even this fact, by itself,
may not be decisive of the matter but, this much is certain that such
happening cannot be categorised as normal or natural in the course of
execution of a document of Will.
15.3 Therefore, in the present case, three features of the document Ex.
P.4, carrying unusual characteristics of their own, manifest themselves on
the face of the record and nothing but a bare look at the document is
sufficient to notice them. The aforesaid three unnatural and unusual
features of the document in question, where different sheets of paper have
been used; where placement of the signatures of the testator at least at two
places is beyond normal distance from the last typed matter; and where in
making of three signatures, at least two different pens were used, make it
clear that a deeper probe is called for to find as to whether this document
could at all be accepted as the last Will of the testator.
15.4. When the exploration is pushed slightly further, another major
feature comes to the fore, which has been noticed by the High Court but
which escaped the attention of the Trial Court altogether. The document in
question is said to be a Will running in 5 pages which is typed (in kannada
49
script) on 3 sheets of papers with the first and second sheets carrying the
typewritten contents on both sides; page number 2 being typed on the
backside of page number 1 and page number 4 being typed on the
backside of page number 3. The significant feature is that page number 2
and page number 4 of this document Ex. P.4 do not carry any signature at
all!
15.4.1. It is apparent on the face of the record that even when the front
facing pages i.e., page numbers 1, 3 and 5 carry the signatures of the
testator, the backside pages i.e., page number 2 and page number 4 are
not signed at all and have gone unsigned. When this material aspect is
added to the above-referred three unusual features, the probative value of
this document Ex. P.4 is shaken to the core and it becomes a serious
question as to whether this document could be considered to be a Will that
was got typed and signed by the testator in the presence of the alleged
attesting witnesses.
15.4.2. In relation to this aspect of want of signatures of the testator on
page number 2 and page number 4, we may also observe that as per the
requirement of clause (b) of Section 63 of the Succession Act, the signature
or mark of the testator is to be so placed that it shall appear that by such
signature or mark, the intention was to give effect to the writing as a Will. Of
course, when no specific form of making a Will is provided, in a given case,
depending on the relevant facts and circumstances, a document drawn on
several sheets but carrying signature only at the end may also be accepted
50
as a genuine Will where the document was authenticated by only one
signature. However, the scenario like the present one, where the executant
had purportedly signed 3 out 5 typewritten pages while omitting to sign the
other 2, definitely stands at contradistinction to the dealing of any normal
person in normal way. When the signatures of the testator are indeed
available on page numbers 1, 3 and 5, it is difficult to find any plausible
explanation for his omission to sign at page number 2 and page number 4
of the same document. The only explanation could be that the testator
chose to sign the front face of each paper and did not consider it necessary
to sign on the backside of the paper. However, accepting such a frail
explanation, and that too in the face of other unusual features (as noticed
hereinbefore), would tantamount to thrusting the probative value into the
document while ignoring everything that is incongruous to, and incompatible
with, the normal course of happenings.
15.4.3. The indisputable fact that page number 2 and page number 4 of the
document in question (EX. P.4) do not carry the signatures of the testator
whereas other pages do carry his signatures, in our view, places the
document in conflict with, or at least non-compliant with, the requirement of
clause (b) of Section 63 of the Succession Act. The document in question
could be rejected outright for this reason alone. However, having regard to
the circumstances of the case, it would be appropriate to deal with other
factual aspects concerning the document in question before reaching to the
final conclusion.
51
15.5. The discussion thus far makes it clear that at least four unusual
features of the document in question are evident on the face of the record.
To recapitulate, the disturbing unusual features of the document in question
are that: (i) it is typewritten on 3 different sheets of paper; (ii) the placement
of signatures of the testator is not of uniformity and excessive space is seen
between the typewritten contents and the signatures on page number 1 and
page number 5; (iii) different pens have been used for signatures on
different pages with ink pen having been used for first and third signatures
(on page number 1 and page number 5) and ballpoint pen having been
used for the second signature (on page number 3); and (iv) all the
typewritten pages do not carry the signatures of the testator, with there
being no signature on page number 2 and page number 4. It does not
require any great deal of elaboration that in the ordinary, normal and usual
course, such a typewritten document is expected to be on the sheets of
paper drawn from the same stack; there would be reasonable uniformity in
placement of the signatures running through the document and every
signature would be placed alongside or at a reasonable distance from the
contents; a single pen or instrument would be used for signing at all places;
and, ordinarily, a maker of the Will would not leave such ambiguity in
expression of his intention as would arise by his signing 3 pages and not
signing 2 other pages of the same document. In fact, in the normal and
ordinary course of dealing, the maker of a Will is least expected to leave
any page of the document unsigned. Although existence of some such
52
unusual features (as noticed above) cannot be ruled out during the course
of typing and signing of the document but when all such unusual features
combine together, the document becomes too vulnerable and cannot be
readily accepted as a genuine document.
16. While proceeding further, we may usefully reiterate the principles
relating to the examination of a document propounded as Will that the
document is not approached with doubts but is examined cautiously and
with circumspection. For what has been noticed hereinabove, the document
in question carries several such features of unusualness which travel into
the realm of abnormalities. The matter does not rest with such abnormalities
only. These abnormal features get confounded with other unusual features
available in the contents of this document. Indisputably, several blank
spaces are found in relation to the particulars of the properties and even
some of the properties are not correctly described. Yet further, the dates
mentioned in the document with reference to Hindi Calendar and English
Calendar do not match. Yet another curious feature is the recital in the
document of a past event (about vacating of the shop by the tenant in the
year 1990) in the manner that such event shall happen in future. Therefore,
the abnormalities relating to paper, pen and signature get magnified with
blank spaces in the document as also with incorrect and inexplicable
recitals.
17. The problems relating to the probative value of the document Ex. P.4
do not end with the aforementioned abnormal features and curious factors.
53
A close examination of this document takes us from abnormalities to
mysteries too. In the opening passage of this document, the recital is to the
effect that the testator was making the Will because so many accidents do
happen. The fact remains that the testator and his wife both died in the car
accident on 20.05.1994 but, it would require travelling into an entirely
mystical region to accept that while making the Will on 20.05.1991, the
testator had the premonition that he would perish in a vehicular accident.
18. As noticed, even when a fishing enquiry with digging of the faults
and lacuna is not to be resorted to while examining a Will but, and at the
same time, the real and valid suspicions which arise because of anything
standing beyond normal happening or conduct cannot be ignored either.
Ignoring or brushing aside all the features noticed in relation to the
document in question would require taking up an individual feature and
ignoring it as being trivial or minor and then, proceeding with the belief that
it had only been a matter of chance that all the abnormalities somehow
chose to conglomerate into this one document. Such an approach would,
obviously, be detached from realities and cannot be adopted. It needs
hardly any emphasis that examination of a document propounded as Will
has to be on the norms of reality as also normalcy; and the overall effect of
all the features and circumstances is required to be examined.
19. When all the aforesaid abnormal, curious and rather mysterious
circumstances are put together, the inescapable conclusion is that the
document in question cannot be accepted as the last Will of the testator.
54
The unexplained, unusual and abnormal features pertaining to the
document only lead to the logical deduction that the document in question
was prepared after the demise of the testator with use of blank signed
papers that came in possession of the propounders and their associates.
The High Court has stated such deduction after thorough examination of
the material on record and, in our view, rightly so. It is noticed that all the
features and factors indicated hereinabove are very much available on the
face of the record. However, the Trial Court, even while dealing with several
contentions in excessive details, either failed to notice some of the features
indicated above or simply brushed aside the particular feature carrying
abnormality with the observations to the effect that the propounders were
not to be expected to remove the suspicions concerning the document
when they had no role in its execution. The Trial Court having, obviously,
misdirected itself on several of the key and pivotal factors, its decision could
not have been approved.
19.1. It is sought to be contented on behalf of the appellants that using of
blank papers had not been the objection taken by the defendants. The
contention remains bereft of substance for the simple reason that the
defendants indeed asserted that the document in question was a fabricated
one. The likelihood of it being drawn on the available blank papers with
signatures of the testator is nothing but a deduction that logically comes out
of the examination of the document in question.
55
20. Much emphasis is laid on behalf of the appellants on the
submissions that execution of the Will in accordance with the requirements
of Section 63 of the Succession Act and Section 68 of the Evidence Act has
been duly established on record with the testimony of the attesting
witnesses as also the witness with whom the Will along with the handwritten
draft of the Will had been deposited by the testator. The submissions so
made on behalf of the appellants cannot be accepted for the reason that
mere proof of the document in accordance with the requirements of Section
68 of the Evidence Act is not final and conclusive for acceptance of a
document as a Will. When suspicious circumstances exist and the
suspicions have not been removed, the document in question cannot be
accepted as a Will.
21. Even the aspect suggested on behalf of the plaintiffs and their
witnesses that the document in question (Ex. P.4) was drawn up as a Will
and was placed in a sealed cover with the handwritten draft (Ex. P.3) has its
own shortcomings and the share of abnormalities. It remains indisputable
that the said draft (Ex. P.3) had remained incomplete. It may be assumed
that the same was being drawn up by the testator in his own handwriting for
finally making his last Will after he had revoked the earlier Will but, it had
remained incomplete draft only. If the testator himself had got his Will typed
and then, took care to have it executed in the presence of 4 attesting
witnesses; and if he intended such executed document to operate as his
Will; and also had the intention that his Will be kept in a sealed cover to be
56
opened before Swamiji, in the ordinary course of dealings, it was least
expected of him to put the said incomplete draft also in the envelope
because placing of such incomplete draft could have only created confusion
in regard to the actual Will, if there were any. Taking an overall view of the
matter, the preponderance of probability is only to the effect that the entire
story about execution of Will by the deceased Sangappa has been cooked
up with use of readily available signed papers (though of different sheets of
paper and with signatures with different instruments) and, in order to
suggest some authenticity, the story of sealed envelope and leaving of the
same with PW-8 was sought to be inserted. This feature only operates
against the plaintiffs where it carries another unexplained unusualness.
22. The Trial Court had largely been swayed by the fact that the
deceased Sangappa was not inclined to give any property to the defendant
No. 1 and his family as had been the case of the earlier Will executed by
him in the year 1974. Admittedly, the said Will of the year 1974 was
cancelled by Shri Sangappa on 26.09.1990. He perished in the vehicular
accident on 20.05.1991. Whether he intended to bequeath any property to
the defendants or not is hardly of any bearing in relation to the suspicious
circumstances noticed above.
23. Having dilated on various major features which, individually and
cumulatively, lead only to the conclusion that the document in question
cannot be accepted to be the last Will of late Shri Sangappa, it does not
appear necessary to discuss several other shortcomings in the case of the
57
plaintiffs, including various other factors like that the plaintiffs never took
steps to get the statement of the said Swamiji recorded, who was otherwise
referred to by all the material witnesses as being the person before whom
the document was allegedly opened.
24. In our view, the document in question falls flat at the very first
question indicated in the case of H. Venkatachala Iyenger (supra) that is, as
to whether the testator signed the Will in question. The answer to this
question is only in the negative. This is apart from the fact that the
document in question, propounded as a Will, is non-compliant with the
requirements of clause (b) of Section 63 of the Succession Act.
24.1. In the ultimate analysis, we are satisfied that the High Court was
right in reversing the decision of the Trial Court and in holding that the
contested Will was not a genuine document.
WHETHER REMAND WAS CALLED FOR
25. Taking up the other point for determination, the submission of
learned counsel for the appellants that the High Court ought to have
considered remanding the case by taking recourse to the provision
contained in Order XLI Rule 23A CPC, in our view, remains totally bereft of
substance; this submission has only been noted to be rejected.
25.1. The procedure relating to appeals from original decrees (usually
referred to as ‘regular first appeal’) is provided in Order XLI of the Code of
Civil Procedure, 1908 and therein, various provisions relating to hearing of
an appeal, remand of case, remitting of issues for trial, production of
58
additional evidence in Appellate Court etc. are contained in Rules 16 to 29
under the sub-heading ‘Procedure on hearing’. For their relevance, we may
take note of the provisions contained in Rules 23, 23A, 24 and 25 of Order
XLI CPC as follows: -
“23. Remand of case by Appellate Court.- Where the
Court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the decree
is reversed in appeal, the Appellate Court may, if it thinks fit,
by order remand the case, and may further direct what issue
or issues shall be tried in the case so remanded, and shall
send a copy of its judgment and order to the Court from
whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil
suits, and proceed to determine the suit; and the evidence (if
any) recorded during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand.
23A. Remand in other cases.- Where the Court from whose
decree an appeal is preferred has disposed of the case
otherwise than on a preliminary point, and the decree is
reversed in appeal and a re-trial is considered necessary, the
Appellate Court shall have the same powers as it has under
rule 23.
24. Where evidence on record sufficient, Appellate
Court may determine case finally.- Where the evidence
upon the record is sufficient to enable the Appellate Court to
pronounce judgment, the Appellate Court may, after resettling
the issues, if necessary, finally determine the suit,
notwithstanding that the judgment of the Court from whose
decree the appeal is preferred has proceeded wholly upon
some ground other than that on which the Appellate Court
proceeds.
25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree appealed
from.-Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit upon
the merits, the Appellate Court may, if necessary, frame
issues, and refer the same for trial to the Court from whose
59
decree the appeal is preferred, and in such case shall direct
such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall
return the evidence to the Appellate Court together with its
findings thereon and the reasons therefor within such time as
may be fixed by the Appellate Court or extended by it from
time to time.”
25.2. Rule 23A came to be inserted in Order XLI CPC by way of the Code
of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was
generally accepted by the Courts that although under Rule 23, an order of
remand could be made only on reversal of a decree disposing of suit on a
preliminary point but, the Appellate Court has the inherent power of
remanding a case where it was considered necessary to do so in the
interest of justice. Some of the High Courts had made similar provisions by
way of their respective amendments. Insertion of Rule 23A in Order XLI by
the Amending Act of 1976 makes it explicit that even when the suit has
been disposed of otherwise than on a preliminary point and the decree is
reversed in appeal, the Appellate Court shall have the power of remand, if a
re-trial is considered necessary.8
25.3. A comprehension of the scheme of the provisions for remand as
contained in Rules 23 and 23A of Order XLI is not complete without
8 Such powers of remand, as provided in Rules 23 and 23A of Order XLI, are different than the
power of the Appellate Court to remit an issue for findings under Rule 25. The power of remitting is
ordinarily to be resorted to when the Trial Court has omitted to try any material issue or to determine
any question of fact. In other words, the proper procedure in a case where the Trial Court, while
disposing of the suit on merits, had failed to determine one or more of the material issues/questions,
is to remit the issue/question(s) under Rule 25 and not to remand the whole case for re-trial.
Ordinarily, in the case of an order under Rule 25 of Order XLI, the matter is retained on the file of the
Appellate Court and only the issue/question(s) are remitted to the Trial Court for findings. On the
other hand, when an order of remand is made under Rule 23 or Rule 23A, the whole case goes
back for decision to the Trial Court except on the point on which the Appellate Court has returned
concluded finding, if any. While making a remand under Rule 23 or Rule 23A, the judgment and
decree of the Trial Court is required to be set aside but it is not necessary to set aside the impugned
judgment and decree when taking recourse to Rule 25 of Order XLI.
60
reference to the provision contained in Rule 24 of Order XLI that enables
the Appellate Court to dispose of a case finally without a remand if the
evidence on record is sufficient; notwithstanding that the Appellate Court
proceeds on a ground entirely different from that on which the Trial Court
had proceeded.
25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth
the scope as also contours of the powers of remand that when the available
evidence is sufficient to dispose of the matter, the proper course for an
Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and
to determine the suit finally. It is only in such cases where the decree in
challenge is reversed in appeal and a re-trial is considered necessary that
the Appellate Court shall adopt the course of remanding the case. It
remains trite that order of remand is not to be passed in a routine manner
because an unwarranted order of remand merely elongates the life of the
litigation without serving the cause of justice. An order of remand only on
the ground that the points touching the appreciation of evidence were not
dealt with by the Trial Court may not be considered proper in a given case
because the First Appellate Court itself is possessed of jurisdiction to enter
into facts and appreciate the evidence. There could, of course, be several
eventualities which may justify an order of remand or where remand would
be rather necessary depending on the facts and the given set of
circumstances of a case.
61
25.4.1. The decision cited by the learned Counsel for the appellants in the
case of Mohan Kumar (supra) is an apt illustration as to when the Appellate
Court ought to exercise the power of remand. In the said case, the
appellant and his mother had filed the civil suit against the Government and
local body seeking declaration of title, perpetual injunction and for recovery
of possession in respect of the land in question. The Trial Court partly
decreed the suit while holding that the plaintiffs were the owners of the land
in dispute on which trespass was committed by the respondents and they
were entitled to get the encroachment removed; and it was also held that
the Government should acquire the land and pay the market value of the
land to the appellant. Such part of the decree of the Trial Court was not
challenged by the defendants but as against the part of the decision of the
Trial Court which resulted in rejection of the claim of the appellant for
allotment of an alternative land, the appellant preferred an appeal before
the High Court. The High Court not only dismissed the appeal so filed by
the appellant but proceeded to dismiss the entire suit with the finding that
the plaintiff-appellant had failed to prove his ownership over the suit land
inasmuch as he did not examine the vendor of his sale deed. In the given
circumstances, this Court observed that when the High Court held that the
appellant was not able to prove his title to the suit land due to nonexamination of his vendor, the proper course for the High Court was to
remand the case to the Trial Court by affording an opportunity to the
appellant to prove his title by adducing proper evidence in addition to what
62
had already been adduced. Obviously, this Court found that for the
conclusion reached by the High Court, a case for re-trial was made out
particularly when the Trial Court had otherwise held that the appellant was
owner of the land in dispute and was entitled to get the encroachment
removed as also to get the market value of the land. Such cases where retrial is considered necessary because of any particular reason and more
particularly for the reason that adequate opportunity of leading sufficient
evidence to a party is requisite, stand at entirely different footings than the
cases where evidence has already been adduced and decision is to be
rendered on appreciation of evidence. It also remains trite that an order of
remand is not to be passed merely for the purpose of allowing a party to fillup the lacuna in its case.
25.5. It gets perforce reiterated that the occasion for remand would arise
only when the factual findings of Trial Court are reversed and a re-trial is
considered necessary by the Appellate Court.
25.6. The present case had clearly been the one where the parties had
adduced all their evidence, whatever they wished to; and it had not been
the case of the plaintiff-appellants that they were denied any opportunity to
produce any particular evidence or if the trial was vitiated because of any
alike reason. As noticed, there had been several suspicious circumstances
surrounding the Will in question, some of which were noticed by the Trial
Court but were brushed aside by it on untenable reasons. The High Court
has meticulously examined the same evidence and the same
63
circumstances and has come to a different conclusion that appears to be
sound and plausible, and does not appear suffering from any infirmity.
There was no reason or occasion for the High Court to consider remanding
the case to the Trial Court. The contention in this regard is required to be,
and is, rejected.
CONCLUSION
26. For what has been discussed hereinabove, we are satisfied that the
High Court has rightly interfered with the decision of the Trial Court and has
rightly held that the document in question cannot be accepted as the
genuine Will of the deceased Sangappa; and there was no reason for the
High Court to remand the case to the Trial Court.
27. Accordingly, and in view of the above, this appeal fails and is,
therefore, dismissed while leaving the parties to bear their own costs
throughout.
………………..………….J.
(A.M.KHANWILKAR)
…………..…………….….J.
(HEMANT GUPTA)
…………..………….…….J.
(DINESH MAHESHWARI)
New Delhi,
Dated: 24th April, 2020.
64
and that a trust created by the defendants on 28.05.1994, in the name “Shri Sangappa Pampanna Gadagshettar Trust, Koppal” in relation to the suit properties, was illegal, void and not binding on the plaintiffs.
The contesting defendants i.e., defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while questioning the genuineness of the alleged Will dated 20.05.1991.
The defendant No. 7, one of the erstwhile trustees of the said trust, however, admitted and endorsed the claim of the plaintiffs. - Trail court decreed the suit - High court dismissed the suit as the will is not proved - Apex court confirmed the same .
Will - Suspecious Circumstances - Appreciation of Evidence. VVIP
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6076 OF 2009
SHIVAKUMAR & ORS. ……… Appellant(s)
Versus
SHARANABASAPPA & ORS. ………Respondent(s)
J U D G E M E N T
Dinesh Maheshwari, J.
PRELIMINARY AND BRIEF OUTLINE
1. By way of this appeal, the plaintiff-appellants have challenged the
judgment and decree dated 26.10.2007 passed by the High Court of
Karnataka at Bangalore in Regular First Appeal No. 910 of 2001 whereby,
the High Court reversed the judgment and decree dated 12.09.2001 passed
by the Court of Civil Judge (Senior Division), Koppal in Original Civil Suit No.
56 of 1994.
1.1. The civil suit aforesaid was filed by the plaintiff-appellants for
declaration and injunction, essentially with the submissions that they had
acquired ownership rights in the suit properties (described in Schedules A to
D attached to the plaint) on the basis of a Will dated 20.05.1991 executed by
1
the owner of the said properties Sri Sangappa son of Pampanna Shettar of
Koppal; and that a trust created by the defendants on 28.05.1994, in the
name “Shri Sangappa Pampanna Gadagshettar Trust, Koppal” in relation to
the suit properties, was illegal, void and not binding on the plaintiffs. The
contesting defendants i.e., defendant Nos. 1 to 5 refuted the claim so made
by the plaintiffs while questioning the genuineness of the alleged Will dated
20.05.1991. The defendant No. 7, one of the erstwhile trustees of the said
trust, however, admitted and endorsed the claim of the plaintiffs.
1.2. After framing necessary issues and after taking the oral and
documentary evidence adduced by the parties, the Trial Court, in its
judgment dated 12.09.2001, decided the principal issue relating to the said
Will dated 20.05.1991 in favour of the plaintiffs and, while also returning its
findings on other necessary issues in favour of the plaintiffs, proceeded to
decree the suit with declaration that the trust created by the defendants on
28.05.1994 was not binding on the plaintiffs, particularly in relation to the suit
properties; and that the plaintiffs were owners of the suit properties as
claimed. The Trial Court also issued injunction against defendant Nos. 1 to 5
that they shall not interfere with the plaintiffs’ peaceful possession and
enjoyment of the suit properties.
1.3. The judgment and decree so passed by the Trial Court were
questioned by the contesting defendants in the High Court by way of the said
first appeal. The High Court, in its impugned judgment dated 26.10.2007
proceeded to allow the appeal while reversing the decision of Trial Court on
2
the principal issue relating to the genuineness of the Will in question. The
High Court found several unexplained suspicious circumstances as also
discrepancies in the Will in question and held that the alleged Will dated
20.05.1991 was not a genuine document. Being aggrieved, the plaintiffs
have preferred the instant appeal.
THE LEAD PERSONS, PARTIES, WITNESSES AND DOCUMENTS AS
ALSO THE PROPERTIES INVOLVED
2. It is but apparent that genuineness of the Will dated 20.05.1991,
said to have been executed by Sri Sangappa son of Pampanna Shettar of
Koppal, allegedly bequeathing the suit properties to the plaintiffs, is in
question in this case.
3. For comprehension of the subject-matter and for effective
determination of the questions raised in this appeal, we may take note of the
principal persons involved in the matter with their respective roles as also the
documents and the properties in question as infra:
3.1. The testator of the Will in question:
Late Sri Sangappa son of Pampanna Shettar of Koppal.
He was a businessman and was also the Chairman of Sri
Gavisiddeshwara V.V. Trust, Koppal (which is different than the trust
questioned in the suit). Late Smt. Mahantamma was his wife.
Undisputedly, both the testator and his wife died in a car accident on
20.05.1994. The testator and his wife did not have any surviving
children, as their children had died in infancy and they were issueless
on the date of their death.
3
3.2. The plaintiffs (the appellant Nos. 1 to 3 herein):
The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj, all
sons of Basetteppa, claim to be the legatees under the Will in
question. They are full-brothers and are grand-nephews of the
testator’s wife. According to the plaintiffs, they were brought up by
the testator and his wife and they were staying with the testator.
3.3. The contesting defendants (Respondent Nos 1 to 4 herein):
The defendant No. 1 Sri Sharanabasappa son of Pampanna is the
younger brother of the testator; the defendant Nos. 2 and 3 Smt.
Basavannemma and Smt. Siddama are the sisters of the testator;
the defendant No. 4 Sri Pampanna son of Basappa and defendant
No. 5 Sri Siddanna son of Fakirappa are the nephews of the
testator.1
-
2
3.3.1. The defendant Nos. 6 to 8:
The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappa
and No. 8 Dr. N.S.Gaikwad were joined in the suit for being the
members of the trust created by other defendants, which was
questioned by the plaintiffs. The defendant No. 7 Sri Veerabasappa
was said to be a close associate of the testator in running
Gavisiddeshwar College of which, the testator was the Chairman of
1The defendant No. 2 Smt. Basavannemma expired during the pendency of the suit and the fact was
noted on the cause-title.
2 The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired during the pendency of this
appeal and his legal representatives were brought on record by the order dated 30.03.2015.
4
Governing Body. This defendant was not related to either of the
parties; he, however, filed a separate written statement, admitting
and endorsing the claim of the plaintiffs.3
3.4. The trust in question: Sri Sangappa Pampanna Gadagshettar Trust:
The defendants created this trust on 28.05.1994 (in the name of the
testator) with inclusion of the properties in question, to pursue
philanthropic and charitable purposes. The creation of this trust was
challenged in the suit.
3.5. Special mention: Sri Gavisiddeshwara Swami, Koppal (Swamiji):
According to the plaintiffs, the testator was a philanthropic and a
devotee of Sri Gavisiddeshwara Swami, Koppal4
; and the contested
Will was opened in the presence of Swamiji. However, Swamiji was
not examined as a witness in this case.
3.6. The key witnesses:
PW-1 Sri Basetteppa:
He is father of the plaintiff Nos. 1 to 3. He allegedly used to assist
the testator in his business.
PW-3 Sri Radhakrishnarao and PW-4 Sri Ayyanagowda Hiregowdar:
They are claimed to be the attesting witnesses of the contested Will.
PW-8 Sri Bhusnoormath, Advocate:
3 The defendant No. 6 Gurushantappa expired on 13.10.2001. He was a trustee of the trust in
question and no substitution was made in his place. The name of defendant No. 7 Veerabasappa was
deleted from the array of parties before the High Court on 24.07.2006. The defendant No. 8 has
remained on record as respondent No. 5 in this appeal.
4 Hereinafter also referred to as ‘Swamiji’.
5
He was a friend and advocate of the testator. Allegedly, the testator
handed over the contested Will to him in a sealed cover with the
instructions that the same was to be opened after his death, only in
the presence of Swamiji. The contested Will was allegedly opened
after the sudden demise of the testator and his wife in the presence
of Swamiji on 29.05.1994.
3.7. Relevant exhibited documents:
Ex. P.2: Will cancellation deed 26.09.1990 whereby, the testator
cancelled an earlier Will executed by him in the year 1974.
Ex. P.3: Handwritten draft of the Will said to have been prepared by
the testator and kept in the sealed cover with the executed Will.
Ex. P.4: The contested Will dated 20.05.1991.
3.8. Suit properties:
Schedule A: Consisting of the parcels of land in Sy. No. 631 and Sy.
No. 632. These were in the name of the testator’s wife as per the
relevant records.
Schedules B, C & D: Consisting of shops and houses; admittedly
they belonged to the testator.5
SUMMARY OF THE PLEADINGS; ISSUES; AND EVIDENCE
4. Having taken note of the persons and the properties involved in the
matter, we may now summarise the pleadings of the parties, the issues
5 The testator owned several other properties too that were not mentioned in the Will, and hence, are
not a part of the suit properties.
6
framed by the Trial Court, and the evidence led by the parties for
appreciating the respective findings of the Trial Court and the High Court.
The plaint:
4.1. The plaintiff-appellants filed the suit aforesaid seeking declaration
and injunction with the averments, inter alia, that Schedule A to D properties
were owned and possessed by the testator Sri Sangappa Shettar of Koppal;
that Schedule A properties, being the parcels of land, were standing in the
name of the testator’s wife Mahantamma but were purchased by him. It was
averred that on 20.05.1994, the testator Sangappa Shettar and his wife died
in a car accident on the National Highway between Hubli-Shiggoan. It was
also averred that both of them died issueless as the children born to them
had died in infancy. The plaintiffs further pointed out the relations of the
parties with the testator and alleged that the testator was earlier joint with his
family but, in or around the year 1964, a partition took place and thereafter,
he remained separate until his demise. The plaintiffs asserted that their
mother Mahadevamma was the sister of the wife of testator; that the testator
Sri Sangappa, out of love and affection, brought up the plaintiffs by keeping
them in his house; that the marriage of the plaintiffs’ father (PW-1) was
performed by the testator in the year 1972; and that the deceased testator
also requested the father of the plaintiffs to assist him in the business. The
plaintiffs further averred that the deceased testator executed a Will in the
year 1974 but, being disillusioned by the behaviour of legatees, he cancelled
the same on 26.09.1990. The plaintiffs pointed out that the deceased testator
7
was the Chairman of Sri Gavisiddeshwara V.V. Trust, Koppal and ardent
devotee of Sri Gavisiddeshwara Swamiji of Koppal. The plaintiffs also
averred that the deceased testator changed the name of the business from
Gurukrupa Stores to Gurukrupa Traders.
4.1.1. The plaintiffs further averred that on 20.05.1991, the testator Sri
Sangappa Shettar executed a Will bequeathing Schedule A properties in
favour of the plaintiffs jointly; Schedule B property in favour of the plaintiff No.
1; Schedule C property in favour of the plaintiff No. 2; and Schedule D
property in favour of the plaintiff No. 3 whereas his remaining properties
were directed to be kept intact and plaintiffs were directed to apply those
properties for charitable purposes. The plaintiffs asserted that the deed of the
Will in question was executed by the deceased voluntarily and in sound state
of mind; and after due execution, he kept the Will in a sealed cover and
deposited the same with Sri Bhusanoormath, Advocate (PW-8) with
directions to open the same after his death in the presence of Swamiji.
According to the plaintiffs, after the death of the testator Sangappa, PW-8
Bhusanoormath, Advocate intimated about the Will and the same was
opened on 29.05.1994 in the presence of Swamiji.
4.1.2. The plaintiffs maintained that the relationship between the deceased
testator and the defendants was not cordial until his death; however, the
deceased bequeathed a house to defendant no. 3 so that she may reside
therein. The plaintiffs alleged that the defendants were well aware about the
Will executed by the testator and yet created the trust in question which was,
8
in any case, not of any adverse effect on the rights of the plaintiffs who had
become owners of the suit properties by virtue of the Will executed by the
testator. With these averments, the plaintiffs sought declaration against the
trust so created by the defendants as also on their ownership rights over the
properties in question and further for injunction against the defendants.
The written statement by defendant No. 1 as adopted by defendant Nos. 2-6
and 8:
4.2. The contesting defendants refuted the plaint averments and
contended, inter alia, that the suit was not maintainable under the provisions
of Section 92 of the Code of Civil Procedure, 1908 (‘CPC’); that the trust in
question was not impleaded as party; and that the description of suit
properties was not correct.
4.2.1. While stating that both Sri Sangappa and his wife died in the
vehicular accident that took place at about 3:15 p.m. on 20.05.1994, these
defendants stated that their dead bodies were identified after about 18 hours;
and that the defendant Nos. 1 to 3 performed their last rites. The allegation
regarding partition was denied.
4.2.2. The contesting defendants further denied the assertions that the
plaintiffs were brought up by Sangappa and maintained that the plaintiffs
were living with their father and mother in a rented house. The contesting
defendants alleged that the relations between the deceased and the father of
the plaintiffs were strained; and that father of the plaintiffs was, in fact,
running the business in the name of Sri Karibasavashwar Trading Co.
9
opposite to the place of business of the deceased Sangappa that was
running in the name of Gurukrupa Traders.
4.2.3. While questioning the Will propounded by the plaintiffs, the
contesting defendants alleged that the plaintiffs are interested in the
properties of the deceased and had forged the Will with ulterior motives.
These defendants denied that the deceased prepared the Will and kept the
same in the sealed cover and deposited it to the Advocate with instruction to
open the same in the presence of Swamiji. The contesting defendants
recounted various suspicious circumstances concerning the Will in question
while alleging, inter alia, that the Will did not bear the signature of deceased
Sangappa; that there was a mismatch in Hindi Calendar date with that of
English Calendar; that the past events were stated in the Will in such a way
that they would happen in future; that various blanks were left in the
description of the properties and even otherwise, the description was
incorrect; that the amount bequeathed to Rajeshwari and Siddabasemma
was not shown; and that the description of the properties under the Will was
inconsistent, incorrect and incomplete.
4.2.4. The contesting defendants also alleged that after the death of
Sangappa and his wife, they became the Class II heirs of the deceased
Sangappa according to Hindu Succession Act and the trust was created for
implementation of the noble thoughts of the deceased. The contesting
defendants also alleged that the declaration of the trust on 28.05.1994 was
prior to the creation of the deed of disputed Will, which was allegedly opened
10
on 29.05.1994. It was also alleged that the defendant No. 7 started acting
against the interest of the trust and he was removed from the trust by way of
a resolution.
The written statement by defendant No. 7- supporting the plaintiffs
4.3. The defendant No. 7 filed a separate written statement, essentially
admitting the claim of the plaintiffs. This defendant stated that he was a close
associate of the deceased in running Gavisiddeshwar College; and that he
was acquainted with the handwriting of the deceased. According to this
defendant, after the demise of Sri Sangappa, the advocate met him and
informed about the trust with religious and charitable objects to be formed
out of the properties not bequeathed. Further, one day he stopped for paying
respect to Swamiji near the house of Principal Mallikarjun Somalapur; and
the advocate informed Swamiji about the Will left by the deceased; and
Swamiji instructed that the Will be given effect to, which may give peace to
the departed soul.
4.3.1. The defendant No. 7 further stated that the advocate handed him
over a xerox copy of the Will and he was convinced about its genuineness
after examining the same and after enquiring from the attesting witnesses;
and he also found that the draft was in the handwriting of the deceased. This
defendant also referred to the proceedings of the meeting of the trust on
10.06.1994, where a suggestion was made that the legatees under the Will
should go and establish their claim in the Court of Law but he asserted that
the Will should be given effect to as, according to him, litigating against the
11
plaintiffs was equivalent to asserting a false case that the deceased had not
executed his Will and therefore, he disassociated himself from the trust.
Issues
4.4. On the pleadings of the parties, the Trial Court framed the following
issues for determination of the questions involved in the matter:-
“1.Whether the plaintiffs prove that the deceased Sangappa
bequeathed the suit properties in their favour under the will
deed dt: 20.05.1991?
2. Whether the defendants 1 to 5 prove that the Commission
Agency shop business was kept joint in the partition of 1954,
held during the life time of father of deceased Sangappa?
3. Whether the suit is not maintainable for not impleading Sri
Sangappa Pamapnna Gadadshettar Trust, Koppal, as a party
to the suit?
4. Whether the suit is not properly valued and court fee paid
is not correct?
5. Whether the plaintiffs are entitled for the relief of
declaration that the trust created under the name Sri
Sangappa Pampanna Gandshettar Trust, Koppal, is illegal,
void and not binding on them?
6. Whether the plaintiffs 1 to 3 are entitled for the relief of
declaration that they are the joint owners of suit A schedule
properties?
7. Whether the plaintiff No. 1 is entitled for the relief of
declaration that he is the owner of suit B schedule
properties?
8. Whether the plaintiff No. 2 is entitled for the relief of
declaration that he is the owner of suit C schedule
properties?
9. Whether the plaintiff No. 3 is entitled for the relief of
declaration that she is the owner of suit D schedule
properties?
10.Whether the plaintiffs are entitled for the consequential
relief of perpetual injunction against the defendants?
11.Whether the defendants are entitled for exemplary costs
of Rs. 30,000?
12. What decree or order?”
12
Evidence
4.5. In order to prove their case, the plaintiffs examined as many as 8
witnesses, the material among them being their father Sri Basetteppa (PW1); the two attesting witnesses of the Will in question Sri Radhakrishnarao
(PW-3) and Sri Ayyanagowda Hiregowdar (PW-4); and the advocate Sri
Bhusnoormath (PW-8), to whom the Will was allegedly handed over in a
sealed cover and who opened the cover in the presence of Swamiji. The
plaintiffs also produced 17 documents including Ex. P.2: the Will cancellation
deed 26.09.1990 whereby, the testator cancelled the earlier Will executed by
him in the year 1974; Ex. P.3: handwritten draft of the Will said to have been
prepared by the testator and kept in the sealed cover with the executed Will;
and Ex. P.4: the contested Will dated 20.05.1991. The defendants examined
2 witnesses and produced 16 documents.
FINDINGS OF THE TRIAL COURT
5. It is but apparent that the pivotal question in this case had been as
to whether the deceased Sangappa bequeathed the suit properties in favour
of the plaintiffs under the Will dated 20.05.1991? The Trial Court took up
issue Nos. 1 and 6 to 10 together and found that Will in question was
executed in accordance with Section 63 of the Indian Succession Act, 19256
and the same was proved as per the requirements of Section 68 of the
Indian Evidence Act, 18727
; and the plaintiffs got the rights as claimed
thereunder. The relevant aspects of the findings of the Trial Court could be
summarised as follows:
6 Hereinafter referred to as ‘the Succession Act’.
7 Hereinafter referred to as ‘the Evidence Act’.
13
5.1. The Trial Court held that all the circumstances establishing that PW8 was handed over the cover containing the Will in question and its draft and
of his opening the same before Swamiji on 29.05.1994 cannot be suspected
as he had no personal gain from the plaintiffs and had no enmity with the
defendants.
5.2. The Trial Court further held that PW-3 and PW-4 have given the
details about the Will but it was not necessary that they would meticulously
know the contents of the Will; that both have unanimously spoken about the
deceased Sangappa having shown them the typed Will, himself having read
out the contents, and having signed before them. The Trial Court yet further
observed that neither the Will was drafted nor it was got typed in the
presence of the attesting witnesses and everything was ready for execution
and therefore, any more details regarding typing of Will of the deceased were
not expected. The Trial Court found that the Will in question was duly
identified by the said witnesses as Ex. P. 4 and the signatures of Sangappa
were also identified as Ex. P. 4 (a), (b) and (c); the signature of PW-3 was at
Ex. P.4 (d) and that of PW-4 at Ex. P. 4 (f). The signatures of other two
witnesses were also identified as Ex. P. 4 (e) and Ex. P. 4 (g). Thus,
according to the Trial Court, the mode of proof as provided under Section 68
of the Evidence Act stood duly complied with.
5.3. The Trial Court also noticed and recounted various features which,
in its opinion, lend credence to the factum of existence of the Will in question.
The Trial Court observed, inter alia, that the draft of the Will was prepared in
14
the handwriting of the deceased as Ex. P.3; that PW-1 was a relative of the
deceased who had been helping the deceased in business and was
acquainted with the handwriting and signature of deceased; and thus, the
handwriting and signature were identified as per Section 47 of Evidence Act.
The Trial Court also observed that the draft was in the cover containing the
executed Will and there was no chance to open the sealed cover; and that
even if the Will did not contain all what was written in Ex. P.3, it was not a
ground to raise any suspicion.
5.4. The Trial Court further observed that the fact that the deceased had
taken help of PW-1, a distant relative, in presence of close relative like
defendant No. 1 and his sons, was sufficient to hold that there was no love
lasting between the deceased and the defendant No. 1 and his sons. The
Trial Court observed that indisputably, the earlier Will, executed in the year
1974, was cancelled in the year 1990 but therein too, the defendant No. 1
and his family had not been given anything; and the intention of the
deceased was clear that he was not willing to give anything to the defendant
No. 1 and his family. The Trial Court also referred to the fact that defendant
Nos. 2 & 3, the sisters of the deceased, did not come before the Court to
speak against the Will in question.
5.5. As regards connectivity of the deceased with the plaintiffs, the Trial
Court referred to the fact that in the admission forms of the plaintiff No. 1
pertaining to the years 1991-92 and 1993-94 for I.U.C. classes in
Gavisidddeshwar College, Koppal, the deceased had signed in place of the
15
guardian; and as per the address given in those applications, he was staying
in Warkar Galli C/o Sangappa Gadedshetter. Hence, the allegations of the
defendants that the plaintiffs were staying separately were rejected. The Trial
Court observed that even if father and mother of the plaintiffs were later on
staying separately due to difference of opinion in women-fold, the fact
remained that, prior to the year 1993, the plaintiffs and their parents were
staying with the deceased as seen by the voter lists (Exs. P.12-16) of Koppal
Town pertaining to years 1975 to 1993.
5.6. As regards the state of mind of the deceased, the Trial Court
observed that the deceased was in sound state of mind at the time of
execution of Will; and he died 3 years after making of Will and, on the day of
his demise, had gone to attend the marriage 100 kms away, which showed
that he was capable of managing himself. The Trial Court also observed that
some of the discrepancies indicated by the defendants had essentially arisen
because of self-scribing of the Will and it cannot be said that the deceased
was a feeble person.
Discrepancies/Suspicions Answered by the Trial Court:
5.7. The Trial Court also proceeded to deal with some of the discrepancies
pointed out by the defendants in the Will in question and answered the same
as follows:
5.7.1. The Trial Court observed that the discrepancy in Hindi and English
Calendar dates as found in Ex. P.3 cannot be made a ground to disbelieve
the entire Will, particularly when the date mentioned in the Will i.e.,
16
20.05.1991 was falling on Monday and the same had been the statements of
PW-3 and PW-4. This discrepancy, according to the Trial Court was of no
bearing on the substance of the matter.
5.7.2. The Trial Court further observed that absence of property numbers
cannot be a ground to hold that the Will was a forged one; and that the
location of house property either in Warkar Galli or Katarki road was
inconsequential so far as giving effect to the Will, as the deceased wanted to
give the property with the boundaries mentioned therein. Similarly, the
property shown as item number 2 in Schedule D was available with
municipal number and was admittedly belonging to the deceased Sangappa.
Therefore, according to the Trial Court, any discrepancy in particulars was of
no bearing; and the blanks were also not casting any doubt or suspicion on
the Will in question. The Trial Court further observed that certain
inconsistencies or certain improper directions may not be called as
suspicious circumstances; and that though the description of property in para
5 of the Will did not disclose the name of the legatee to whom it was
bequeathed but, that too was not a circumstance to disbelieve the entire Will.
5.7.3. The Trial Court yet further observed that non-registration of Will
cannot raise the presumption of forgery and fabrication. The Trial Court also
observed that the reason for keeping the Will secret was that the legatees
under the earlier Will were not respecting the feelings of the deceased and
hence, the deceased kept everybody guessing about the contents of his last
Will.
17
5.7.4. As regards the suspicious circumstance asserted by the defendants
that deceased had not left anything for his wife in the Will executed in the
year 1991, the Trial Court observed that when, apart from the properties
shown in the Will, the deceased was leaving other properties too, definitely
those properties would have gone to his wife and hence, not making the
provision for wife in the Will was not a ground that could be raised as
suspicion. The Trial Court also observed that in para 3 of the Will, 4 acres of
the land of Irkalgada was given to Gopur Basaveshwara Temple, which
clearly showed that the deceased had given properties to charitable
purposes also.
5.7.5. As regards entering of the names of the legatees in the Will by the
deceased by filing an application to municipality on 04.09.1993 during his life
time, the Trial Court observed that such entries were of no legal effect and do
not operate against the Will in question.
5.7.6. As regards the question raised by the defendants that even the past
events were stated in the Will as if to happen in future, the Trial Court
observed that in para 4 of the Will, the deceased had stated that Sangappa
Uttangi had promised to vacate the shop and godown in the year 1990 and
though the wording should have been different when the Will was written in
the month of May 1991, but such a fact was irrelevant because Uttangi was a
tenant and even if he had continued, that would not have affected the rights
of legatees under the Will.
18
5.8. In relation to the suspicious features pertaining to the documents in
question i.e., the draft of the Will Ex. P.3 and the deed of Will Ex. P.4, the
Trial Court observed that only the strong suspicious circumstances were
required to be explained by the propounder of the Will; and proceeded to
dismiss the suspicions suggested by the defendants, with the observations
and findings, inter alia, as follows :
5.8.1. The Trial Court observed that the loose sheets were removed from
the exercise note book and used by the deceased to write the draft but, there
was no evidence to show that the entire draft was made on one day; and the
deceased might have written some pages on some day and some pages on
some other day. After noticing that chronological numbers were not available
on such loose sheets, the Trial Court observed that the draft could be used to
read the intention and to interpret the Will Ex. P.4 but, it cannot be used to
nullify the intention of the deceased. In this sequence, the Trial Court also
observed that the persons challenging the Will were not expected to get any
property through succession because, in the event of the demise of
Sangappa alone, the properties would have gone to his wife.
5.8.2. As regards non-examination of the typist, the Trial Court observed
that it was not at all a suspicious circumstance because the Will was a secret
document and nobody, including the propounders, knew as to where the Will
was typed.
5.8.3. Though the very opening recital in the Will in question mentioned
about the likelihood of an accident but in this regard, the Trial Court observed
19
that none except deceased himself could give explanation as to what was
the intuition for him to write in the Will about accident and death in the
accident.
5.8.4. As regards the document itself (Ex. P.4), the Trial Court noticed that
page numbers 1, 2 and 5 of the Will were green coloured, whereas the
colour of page numbers 3 and 4 was not the same but observed that different
coloured sheets might have been used by the typist.
5.8.5. The Trial Court, of course, noted the features that the signature of
the testator on page number 1 of the document in question (Ex. P.4) was
made with an ink pen whereas ballpoint pen was used on the next page but,
observed in this regard that one of the witnesses had spoken that the ink pen
did not write properly so the ballpoint pen was used. The Trial Court further
observed that so far putting the signatures before the witnesses was
concerned, there was no doubt that Ex. P. 4 (a) (b) & (c) were the signatures
of the deceased, as proved in the testimonies of the attesting witnesses. The
Trial Court yet further observed that the Will was kept by the deceased in
sealed cover and this was a strong circumstance to show that the execution
of Will by the deceased cannot be suspected.
5.9. In its conclusion, the Trial Court held that from every angle, the Will
in question was natural; and the plaintiffs had discharged their burden of
proving the same and also dispelled the suspicious circumstances stated by
the defendants. The Trial Court, accordingly, held that overall reading of the
Will indicated that the deceased had written the same with an intention of
20
bequeathing the properties to the legatees. Issue Nos. 1 and 6 to 10 were,
therefore, decided in favour of the plaintiffs.
5.10. The Trial Court also returned the findings on other issues in favour
of the plaintiffs and, accordingly, decreed the suit with declaration and
injunction as noticed hereinbefore.
REVERSAL BY THE HIGH COURT
6. In appeal by the contesting respondents against the judgment and
decree so passed by the Trial Court, the High Court took note of the material
on record as also the rival contentions and framed two points for
determination as follows:
“i) Whether the plaintiffs proved that the deceased Sangappa
bequeathed his properties in their favour under the will dated
20.5.1991?
ii) Whether the trial Court was justified in holding the will
dated 20.5.1991 executed by Sangappa as genuine or not?”
6.1. In relation to both the points aforesaid, which essentially revolved
around the question of genuineness of the Will in question, the High Court
took note of the principles exposited by this Court in the cases of Smt. Indu
Bala Bose and Ors. v. Manindra Chandra Bose and Anr.: (1982) 1 SCC
20 and Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.: (1977) 1 SCC
369 and thereafter, proceeded to examine the basic contentions of the
defendants that by its very nature, the Will appeared to be a fabricated
document. After taking note of the discrepancies in the document itself and
other unnatural circumstances as also after analysing the evidence of the
star witnesses PW-4 and PW-8, the High Court found that the Trial Court had
21
erred in deciding the relevant issue in favour of the plaintiffs and, while
reversing the findings of the Trial Court, held that the contested Will was not
a genuine one. As the consequence, the judgment and decree passed by
the Trial Court were set aside. Of course, as regards the question of
possession, the High Court left it open for the contesting defendants to take
recourse to appropriate remedies in accordance with law.
6.2. As regards discrepancies in the document in question, about the
difference of the colour of the three sheets used and in the alleged
signatures of the testator, the High Court meticulously examined the
document and recorded its observations and findings as follows:
“24. Keeping the observations of the Hon’ble Supreme
Court in view, the WILL would have to be looked into since it
has been strenuously contended by the learned senior
counsel for the appellant that the very sight of the WILL
would indicate that the same has been fabricated. The
original of the WILL dated 20.5.1991 is marked as Ex.P4
which is available in the records secured from the Court
below. The same is typed in Kannada script on three sheets
which are normally used for typing papers which are
submitted to Court. The colour of the three sheets are not
similar. The first sheet is light green, the second sheet is
very light in colour (almost white) and the third sheet is
darker among the three. At the outset, it is clear that all
the three sheets are not from the same stock and if the
same was got typed from a typist in a normal course as
claimed, the sheets could not have been different from
one another. The alleged signature of the testator is found at
the bottom of each page on the facing side only. Though
there is typed matter on the reverse side at pages 2 and
4 the same does not contain signatures. Even the
signatures found on the facing sheet are not uniformly
affixed. On first page the signature is more than one inch
below the last line of the typed matter and has the
appearance of a prefixed signature. The second sheet (page3) contains signature near to the typed matter. The last sheet
(page 5) has the signature which is at a distance of about an
22
inch below the last line of the typed matter. The name of the
alleged testator typed below the signature has all indications
of the same being typed below an existing signature. This is
evident from the fact that the name would not have been
typed so low from the typed matter, particularly when the
place ‘Koppal’ and date typed on the left side of the sheet is
at a lesser distance from the typed matter and are not in
alignment with each other. The space provided for signature
of four witnesses seems very unnatural and even in that
circumstance the name of the alleged testator would not have
been typed so low if it was a natural typing on a blank sheet.
The first page and last page have been signed using
fountain ink pen but the pen used is not similar to one
another. The second sheet is signed by a ballpoint pen.
The pattern of signatures if compared with the earlier
admitted WILL dated 29.6.1990 which was registered but
later revoked, which is marked as Ex.P1 would indicate
uniform pattern immediately below the written matter without
any gap and even a small correction has been attested,
whereas in the propounded WILL, blanks have been left. It
does not require a detective like Sherlock Holmes to
notice these discrepancies which are visible to naked
eye and the very sight of the WILL does not inspire
confidence that it could be genuine.”
(emphasis supplied)
6.3. The unusual feature of the use of different instruments while making
three signatures on the same document came up for its fuller exposition
when the High Court proceeded to examine the explanation sought to be
furnished by PW–4. While rejecting the testimony of this witness PW-4, the
High Court observed and found, inter alia, as under: –
“27. In this background, the discrepancies in the
signatures and the different pens which were used also
assumes importance. In this regard P.W.-4, Sri Ayyanagowda
Hiregowdar who claims to be one of the attesting witness of
the WILL in his cross examination admitted that Ex.P4(a) is
the signature with ink pen, except Ex.P4(c) being the
signature with ball pen and again signature Ex.P4(b) is by ink
pen and he has also stated that the signatures in Ex.P4(a)
and (b) have been made by the very same pen. He has
further stated that both the pens were available with the
23
testator. He has sought to explain the same by stating that
while signing the third page the ink pen was not working, this
explanation is palpably false and cannot be believed for the
reason that the first page has been signed by fountain ink
pen and the third page again has been signed by the fountain
ink pen whereas the second page has been signed by a
ballpoint pen. Hence this would not only indicate the incorrect
statement but would certainly indicate the unnatural
circumstances that a person would be so careless while
signing a document in the nature of a WILL which is fully
known to him that it is a document regarding which he would
not be available to explain the situation. One other reason for
which the said explanation cannot be believed is that if the
fountain ink pen used by the testator was really not
working after affixing the signature on the first page, it
cannot be understood as to how he could have signed
the second sheet with the ballpoint pen and thereafter
once again sign the third sheet with the fountain ink pen
more so, when the ink pen used in the first sheet and the
third sheet are not similar to one another. That apart the
signatures of the so called attesting witnesses to the WILL
would indicate that the same have been made with fountain
ink pen and the said ink of these signatures are much fresher
than the signatures of the alleged testator…..”
(emphasis supplied)
6.4. The High Court also rejected the contentions of the plaintiffs that the
alleged discrepancies could not take away the validity of the Will as it was
produced by PW-8 and the sealed envelope was opened in the presence of
Swamiji. The High Court pointed out that the very assertion, about availability
of the handwritten draft of the proposed Will EX. P.3 in the sealed envelope
along with the alleged executed Will EX. P.4, was that of another unnatural
feature because if the testator had himself completed and executed the Will
in the presence of witnesses, there was no reason to place the incomplete
handwritten draft in the envelope. The High Court proceeded to observe that
such feature gave strong indication that the plaintiffs had been able to place
24
their hands on an incomplete draft and have fabricated the Will using blank
sheets signed by the testator at different times; and only to make it appear
authentic, the story of the envelope containing the draft was weaved. While
rejecting the story about the availability of the sealed envelope with the
advocate PW-8 and its opening before Swamiji, the High Court also pointed
out that the advocate concerned, PW-8, was known to the testator as also to
the father of the plaintiffs PW-1 inasmuch as he had indeed appeared in his
professional capacity on behalf of PW-1. Moreover, and as noticed, in regard
to the assertion of the plaintiffs and the witnesses that the cover containing
the Will was opened before Swamiji, the High Court observed that the said
Swamiji was a very important and material witness in this case but the
plaintiffs never took any steps to get his statement recorded.
6.5. After taking note of the aforesaid inexplicable features, unnatural
circumstances, unreliability of the witnesses of the plaintiffs and the fact that
no steps were taken by the plaintiffs to get recorded the statements of a
material witness, namely the said Swamiji, the High Court also took note of
the approach of the Trial Court and did not approve the same while
observing, inter alia, as under:
“28. The said discrepancies though noticed have been
sought to be explained by the learned Judge of the Court
below in a manner as though to overcome the same wherein
the learned Judge states that the difference in the colour of
the papers cannot be suspected because it could have been
used by the typist. The learned Judge further holds that it
cannot be suspected since the said papers contain the
signatures and the signatures have been identified by the
witnesses. As noticed by us above, the very signatures itself
are doubtful that it has been affixed after the matter was
25
typed and the explanation given by the witnesses are even
more doubtful and as such the learned Judge could not have
lightly brushed aside these aspects.”
6.6. In view of the above, the High Court allowed the appeal and set
aside the judgment and decree of the Trial Court. Hence, the unsuccessful
plaintiffs have preferred this appeal.
RIVAL CONTENTIONS
7. Assailing the judgement of the High Court, learned senior counsel
for the plaintiff–appellants has strenuously argued that the High Court has
seriously erred in setting aside the findings of the Trial Court, which were
based on due appreciation of the consistent evidence of the material
witnesses. The learned counsel has contended that the facts are amply
established on record that on 20.05.1991, the testator executed the Will in
question in accordance with the provisions of Section 63 of the Succession
Act and Section 68 of the Evidence Act with his signatures and with
attestation by more than two witnesses who had seen the testator signing the
Will. According to the learned counsel, the testator was in sound and
disposing state of mind while voluntarily executing the Will, as required by
Section 59 of Indian Succession Act. PW-3 and PW-4 deposed before the
Trial Court that the testator himself showed the typed Will and put his
signatures on the same; and the Will was duly attested by PW-3 and PW-4.
Hence, the requirements of Section 68 of the Evidence Act are fulfilled. The
learned counsel has referred to the decision in the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma and Ors: AIR 1959 SC 443 and has
26
contended that with all the legal requirements being fulfilled and there being
no reason to ignore or disbelieve the Will, the Trial Court had rightly decreed
the suit and the High Court has not been justified in upsetting the considered
decision of the Trial Court.
7.1. The learned senior counsel has contended that the appellants have
dispelled all suspicious circumstances qua the Will in question; that as per
Section 74 of the Succession Act, it is not necessary that technical words be
used in the Will; and what is necessary is only that the intention of the
testator ought to be set out in the Will. According to the learned counsel, Ex.
P3, the handwritten draft, makes the intention of the testator clear that he
wanted to bequeath his properties to the appellants. Further, PW-5 and
defendant No. 7 have clearly identified the signature of the testator. The
learned counsel would urge that with the intention of the testator having been
amply established on record, some blanks in the Will or some other minor
inconsistencies cannot take away the substance thereof, particularly when
the properties could be identified with the help of the boundaries. The
learned counsel has referred to the decisions in Smt. Indu Bala Bose and
Ors. v. Manindra Chandra Bose and Anr.: (1982) 1 SCC 20 and P.P.K.
Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors: 1995 Supp
(2) SCC 664. The learned counsel has further contended that exclusion of
any legal heir from the Will is not a suspicious circumstance and has referred
to the decision in Uma Devi Nambiar and Ors. v. T.C. Sidhan: (2004) 2
SCC 321.
27
7.2. The learned senior counsel has further strenuously argued that it
had not been the contention of the respondents that the document in
question was drawn on blank signed papers and the observation of the High
Court that the document in question was drawn on blank signed papers does
not find support in the evidence and pleadings on record. In this regard, the
learned counsel has relied upon the decision in Mahesh Kumar (dead) by
LRs v. Vinod Kumar and Ors: (2012) 4 SCC 387.
7.3. In the last and in the alternative, the learned senior counsel has
argued that if at all the High Court found the want of requisite evidence, the
proper course was to exercise the power of remand under the provisions of
Order XLI Rule 23-A CPC. The learned counsel has contended that the High
Court being the first Court of Appeal, ought to have given the opportunity to
the appellants to adduce proper additional evidence, considering the fact that
the findings were being made on suspicious circumstances other than those
raised by the defendants in their pleadings and evidence. The learned
counsel has referred to and relied upon the decision in the case of Mohan
Kumar v. State of Madhya Pradesh and Ors.: (2017) 4 SCC 92.
8. Per contra, learned counsel for the contesting respondents has duly
supported the judgement of the High Court with reference to the reasonings
and observations therein. The learned counsel has also argued that right
from the beginning, it had been the case of the respondents that the
propounded Will was nothing but a fabricated document and it is incorrect
to say that particular objection had not been taken by the respondents. The
28
learned counsel has referred to the decision in K. Laxmanan v. Thekkayil
Padmini and Ors.: (2009) 1 SCC 354.
POINTS FOR DETERMINATION
9. In view of the submissions made, the following points essentially arise
for determination in this case:
1. As to whether the High Court was right in reversing the decision of
the Trial Court and in holding that the contested Will was not a genuine
document?
2. As to whether the High Court ought to have considered remanding
the case to the Trial Court?
WILL – PROOF AND SATISFACTION OF THE COURT
10. As noticed, the basic point for determination in this case is as to
whether the High Court was justified in taking a view contrary than that of
the Trial Court and in holding that the Will propounded by the plaintiffs is not
the genuine Will of the deceased Sangappa. Determination of this point,
obviously, revolves around the legal principles applicable to the making of a
testamentary document like Will, its proof, and its acceptance by the Court.
10.1. The Will being a rather solemn document that comes into operation
after the death of the testator, special provisions are made in the statutes
for making of a Will and for its proof in a Court of law. Section 59 of the
Succession Act provides that every person of sound mind, not being a
minor, may dispose of his property by Will. A Will or any portion of a Will,
the making of which has been caused by fraud or coercion or by any such
importunity that has taken away the free agency of the testator, is declared
29
to be void under Section 61 of the Succession Act; and further, Section 62
of the Succession Act enables the maker of a Will to make or alter the same
at any time when he is competent to dispose of his property by Will.
Chapter III of Part IV of the Succession Act contains the provisions for
execution of unprivileged Wills (as distinguished from privileged Wills
provided for in Chapter IV). Section 63 of the Succession Act, relevant for
the present purpose, reads as under: –
“63. Execution of unprivileged Wills.-Every testator,
not being a soldier employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged, or a
mariner at sea, shall execute his Will according to the
following rules:-
(a) The testator shall sign or shall affix his mark to the
Will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so placed
that it shall appear that it was intended thereby to give effect
to the writing as a Will.
(c)The Will shall be attested by two or more witness, each of
whom has seen the testator sign or affix his mark to the Will
or has seen some other person sign the Will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgment of his signature or mark,
or the signature of such other person; and each of the
witnesses shall sign the Will in the presence of the testator,
but it shall not be necessary that more than one witness be
present at the same time, and no particular form of
attestation shall be necessary.”
10.2. Elaborate provisions have been made in Chapter VI of the
Succession Act, in Sections 74 to 111, for construction of Wills which, in
their sum and substance, make the intention of legislature clear that any
irrelevant misdescription or error is not to operate against the Will; and
30
approach has to be to give effect to a Will once it is found to have been
executed in the sound state of mind by the testator while exercising his own
free will. However, when the Will is surrounded by suspicious
circumstances, the Court would expect that the legitimate suspicion should
be removed before the document in question is accepted as the last Will of
the testator.
10.3. As noticed, as per Section 63 of the Succession Act, inter alia,
requires that the Will ought to be attested by two or more witnesses. Hence,
any document propounded as a Will cannot be used as evidence unless at
least one attesting witness has been examined for the purpose of proving
its execution, if such witness is available and is capable of giving evidence
as per the requirements of Section 68 of the Evidence Act, that reads as
under: –
“68. Proof of execution of document required by law
to be attested.-If a document is required by law to be
attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject
to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being
a Will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it purports to
have been executed is specifically denied.”
10.4. Learned Counsel for the appellant has referred to the decision in the
case of H. Venkatachala Iyenger (supra). It is noticed that in paragraphs 18
to 22 of the said decision, this Court has synthesised and condensed
31
almost the entire panorama relating with execution and proof of a Will and
the guiding principles for a Court while examining the document which is
propounded as a Will. These passages in the said 3-Judge Bench decision
of this Court could be usefully reproduced as under: –
“18. What is the true legal position in the matter of proof of
wills? It is well-known that the proof of wills presents a
recurring topic for decision in courts and there are a large
number of judicial pronouncements on the subject. The party
propounding a will or otherwise making a claim under a will is
no doubt seeking to prove a document and, in deciding how it
is to be proved, we must inevitably refer to the statutory
provisions which govern the proof of documents. Sections 67
and 68 of the Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be signed by
any person, the signature of the said person must be proved
to be in his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of experts
and of persons acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with the proof
of the execution of the document required by law to be
attested; and it provides that such a document shall not be
used as evidence until one attesting witness at least has
been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor,
may dispose of his property by will and the three illustrations
to this section indicate what is meant by the expression "a
person of sound mind" in the context. Section 63 requires
that the testator shall sign or affix his mark to the will or it
shall be signed by some other person in his presence and by
his direction and that the signature or mark shall be so made
that it shall appear that it was intended thereby to give effect
to the writing as a will. This section also requires that the will
shall be attested by two or more witnesses as prescribed.
Thus, the question as to whether the will set up by the
propounder is proved to be the last will of the testator
has to be decided in the light of these provisions. Has
the testator signed the will? Did he understand the
32
nature and effect of the dispositions in the will? Did he
put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions
which determines the nature of the finding on the
question of the proof of wills. It would prima facie be true
to say that the will has to be proved like any other document
except as to the special requirements of attestation
prescribed by Section 63 of the Indian Succession Act. As in
the case of proof of other documents so in the case of proof
of wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test of the
satisfaction of the prudent mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the testator, and
so, when it is propounded or produced before a court, the
testator who has already departed the world cannot say
whether it is his will or not; and this aspect naturally
introduces an element of solemnity in the decision of the
question as to whether the document propounded is proved
to be the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the court will start
on the same enquiry as in the case of the proof of
documents. The propounder would be called upon to show
by satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a sound
and disposing state of mind, that he understood the nature
and effect of the dispositions and put his signature to the
document of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested, satisfactory
and sufficient to prove the sound and disposing state of the
testator's mind and his signature as required by law, courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the propounder
can be taken to be discharged on proof of the essential
facts just indicated.
20. There may, however, be cases in which the execution
of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator may be
very shaky and doubtful and evidence in support of the
propounder's case that the signature in question is the
signature of the testator may not remove the doubt created
by the appearance of the signature; the condition of the
testator's mind may appear to be very feeble and debilitated;
and evidence adduced may not succeed in removing the
33
legitimate doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be unnatural,
improbable or unfair in the light of relevant circumstances; or,
the will may otherwise indicate that the said dispositions may
not be the result of the testator's free will and mind. In such
cases the court would naturally expect that all legitimate
suspicions should be completely removed before the
document is accepted as the last will of the testator. The
presence of such suspicious circumstances naturally
tends to make the initial onus very heavy; and, unless it
is satisfactorily discharged, courts would be reluctant to
treat the document as the last will of the testator. It is true
that, if a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the execution of the
will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may
raise a doubt as to whether the testator was acting of his own
free will in executing the will, and in such circumstances, it
would be a part of the initial onus to remove any such
legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we
have just referred, in some cases the wills propounded
disclose another infirmity. Propounders themselves take a
prominent part in the execution of the wills which confer on
them substantial benefits. If it is shown that the propounder
has taken a prominent part in the execution of the will and
has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory evidence.
It is in connection with wills that present such suspicious
circumstances that decisions of English courts often mention
the test of the satisfaction of judicial conscience. It may be
that the reference to judicial conscience in this connection is
a heritage from similar observations made by ecclesiastical
courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the word
“conscience” in this context would, in our opinion, be purely
technical and academic, if not pedantic. The test merely
emphasizes that, in determining the question as to whether
an instrument produced before the court is the last will of the
testator, the court is deciding a solemn question and it must
be fully satisfied that it had been validly executed by the
testator who is no longer alive.
34
22. It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on wills,
no hard and fast or inflexible rules can be laid down for the
appreciation of the evidence. It may, however, be stated
generally that a propounder of the will has to prove the
due and valid execution of the will and that if there are
any suspicious circumstances surrounding the
execution of the will the propounder must remove the
said suspicions from the mind of the court by cogent
and satisfactory evidence. It is hardly necessary to add that
the result of the application of these two general and broad
principles would always depend upon the facts and
circumstances of each case and on the nature and quality of
the evidence adduced by the parties. It is quite true that, as
observed by Lord Du Parcq in Harmes v. Hinkson:(1946) 50
C.W.N. 895, "where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close his
mind to the truth". It would sound platitudinous to say so, but
it is nevertheless true that in discovering truth even in such
cases the judicial mind must always be open though vigilant,
cautious and circumspect.”
(emphasis supplied)
10.5. Learned Counsel for the appellant has referred to paragraphs 7 and
8 of the decision of this Court in the case of Indu Bala Bose (supra) which
may also be taken note of as under: –
“7. This Court has held that the mode of proving a Will does
not ordinarily differ from that of proving any other document
except to the special requirement of attestation prescribed in
the case of a Will by Section 63 of the Succession Act. The
onus of proving the Will is on the propounder and in the
absence of suspicious circumstances surrounding the
execution of the will, proof of testamentary capacity and the
signature of the testator as required by law is sufficient to
discharge the onus. Where however there are suspicious
circumstances, the onus is on the propounder to explain
them to the satisfaction of the court before the court
accepts the Will as genuine. Even where circumstances
35
give rise to doubts, it is for the propounder to satisfy the
conscience of the court. The suspicious circumstances may
be as to the genuineness of the signatures of the testator, the
condition of the testator's mind, the dispositions made in the
Will being unnatural, improbable or unfair in the light of
relevant circumstances, or there might be other indications in
the Will to show that the testator's mind was not free. In such
a case the court would naturally expect that all legitimate
suspicions should be completely removed before the
document is accepted as the last Will of the testator. If the
propounder himself takes a prominent part in the execution of
the will which confers a substantial benefit on him, that is also
a circumstance to be taken into account, and the propounder
is required to remove the doubts by clear and satisfactory
evidence. If the propounder succeeds in removing the
suspicious circumstances the court would grant probate,
even if the will might be unnatural and might cut off wholly or
in part near relations.: AIR 1964 SC 529
8 . Needless to say that any and every circumstance is
not a “suspicious” circumstance. A circumstance would
be “suspicious” when it is not normal or is not normally
expected in a normal situation or is not expected of a
normal person.”
(emphasis supplied)
10.6. In the case of P.P.K. Gopalan Nambiar (supra), the Will in question
was a registered one and the endorsement made by the Registrar showed
that the testator was in a sound disposing state of mind and the Will was
executed out of the testator’s free will. It was also found that the testator died
8 years after registration of the Will and though legatee propounded the Will in
his written statement, but no plea was taken by the opposite party to question
the validity of the Will. The Will was duly proved with examination of the
attesting witness. In the given circumstances, the fact that whole of the estate
was given to one son under the Will while depriving two daughters, was not
36
considered to be a suspicious circumstance. On the requisite approach, this
Court said as under:-
“5. Under these circumstances, the suspicion which excited
the mind of the District Munsif is without any basis and he
picked them from his hat without fact-foundation. The
Subordinate Judge had rightly considered all the
circumstances and upheld the will. The High Court, without
examining the evidence, by merely extracting legal position
set out by various decisions of this Court has upset the
finding of the fact recorded by the Subordinate Judge in one
sentence. It is trite that it is the duty of the propounder of the
will to prove the will and to remove all the suspected features.
But there must be real, germane and valid suspicious
features and not fantasy of the doubting mind.”
(emphasis supplied)
10.7. In the case of Uma Devi Nambiar (supra), this Court reviewed the
case law dealing with the Will to a large extent and, while referring to the
Constitution Bench decision of this Court in the case of Shashi Kumar
Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964 SC
529, observed that merely because the natural heirs have either been
excluded or lesser share had been given to them, by itself, will not be
considered to be a suspicious circumstance. This Court observed, inter alia,
as under:-
“15. Section 63 of the Act deals with execution of unprivileged
Wills. It lays down that the testator shall sign or shall affix his
mark to the Will or it shall be signed by some other person in
his presence and by his direction. It further lays down that the
Will shall be attested by two or more witnesses, each of
whom has seen the testator signing or affixing his mark to the
Will or has seen some other person sign the Will, in the
presence and by the direction of the testator and each of the
witnesses shall sign the Will in the presence of the testator.
Section 68 of the Indian Evidence Act, 1872 (in short the
“Evidence Act”) mandates examination of one attesting
witness in proof of a Will, whether registered or not. The law
37
relating to the manner and onus of proof and also the duty
cast upon the court while dealing with a case based upon a
Will has been examined in considerable detail in several
decisions of this Court…….A Constitution Bench of this Court
in Shashi Kumar Banerjee's case succinctly indicated the
focal position in law as follows: (AIR p. 531, para 4)
"The mode of proving a Will does not ordinarily differ
from that of proving any other document except as to
the special requirement of attestation prescribed in the
case of a Will by Section 63 of the Indian Succession
Act. The onus of proving the Will is on the propounder
and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of
testamentary capacity and the signature of the testator
as required by law is sufficient to discharge the onus.
Where however there are suspicious circumstances, the
onus is on the propounder to explain them to the
satisfaction of the court before the court accepts the Will
as genuine. Where the caveator alleges undue
influence, fraud and coercion, the onus is on him to
prove the same. Even where there are no such pleas
but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court. The
suspicious circumstances may be as to the genuineness
of the signature of the testator, the condition of the
testator's mind, the dispositions made in the Will being
unnatural, improbable or unfair in the light of relevant
circumstances or there might be other indications in the
Will to show that the testator's mind was not free. In
such a case the court would naturally expect that all
legitimate suspicion should be completely removed
before the document is accepted as the last Will of the
testator. If the propounder himself takes part in the
execution of the Will which confers a substantial benefit
on him, that is also a circumstance to be taken into
account, and the propounder is required to remove the
doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious
circumstances the court would grant probate, even if the
Will might be unnatural and might cut off wholly or in
part near relations."
16. A Will is executed to alter the ordinary mode of
succession and by the very nature of things it is bound to
result in earlier reducing or depriving the share of natural
heirs. If a person intends his property to pass to his natural
38
heirs, there is no necessity at all of executing a Will. It is true
that a propounder of the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs have either been
excluded or a lesser share has been given to them, by itself
without anything more, cannot be held to be a suspicious
circumstance specially in a case where the bequest has been
made in favour of an offspring. As held in P.P.K. Gopalan
Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2
SCR 585, it is the duty of the propunder of the Will to remove
all the suspected features, but there must be real, germane
and valid suspicious features and not fantasy of the doubting
mind. It has been held that if the propounder succeeds in
removing the suspicious circumstances, the court has to give
effect to the Will, even if the Will might be unnatural in the
sense that it has cut off wholly or in part near relations. ……
In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee
(dead) by LRs. and Ors.: AIR 1995 SC 1684, it was observed
that the circumstance of deprivation of natural heirs should
not raise any suspicion because the whole idea behind
execution of the Will is to interfere with the normal line of
succession and so, natural heirs would be debarred in every
case of Will. Of course, it may be that in some cases they are
fully debarred and in some cases partly.”
10.8. In the case of Mahesh Kumar (supra), this Court indicated the error
of approach on the part of High Court while appreciating evidence relating
to the Will in the following:-
“44. The issue which remains to be examined is whether the
High Court was justified in coming to the conclusion that the
execution of the will dated 10-2-1992 was shrouded with
suspicion and the appellant failed to dispel the suspicion? At
the outset, we deem it necessary to observe that the learned
Single Judge misread the statement of Sobhag Chand (DW3)
and recorded something which does not appear in his
statement. While Sobhag Chand categorically stated that he
had signed as the witness after Shri Harishankar had signed
the will, the portion of his statement extracted in the
impugned judgment gives an impression that the witnesses
had signed even before the executant had signed the will.
45. Another patent error committed by the learned Single
Judge is that he decided the issue relating to validity of the
will by assuming that both the attesting witnesses were
39
required to append their signatures simultaneously. Section
63(c) of the 1925 Act does not contain any such requirement
and it is settled law that examination of one of the attesting
witnesses is sufficient. Not only this, while recording an
adverse finding on this issue, the learned Single Judge
omitted to consider the categorical statements made by DW
3 and DW 4 that the testator had read out and signed the will
in their presence and thereafter they had appended their
signatures.
46. The other reasons enumerated by the learned Single
Judge for holding that the execution of will was highly
suspicious are based on mere surmises/conjectures. The
observation of the learned Single Judge that the possibility of
obtaining signatures of Shri Harishankar and attesting
witnesses on blank paper and preparation of the draft by Shri
S.K. Agarwal, Advocate on pre-signed papers does not find
even a semblance of support from the pleadings and
evidence of the parties. If Respondent 1 wanted to show that
the will was drafted by the advocate after Shri Harishankar
and attesting witnesses had signed blank papers, he could
have examined or at least summoned Shri S.K. Agarwal,
Advocate, who had represented him before the Board of
Revenue. …..”
10.9. In the case of K. Laxmanan (supra), this Court, with reference to the
settled principles including those in the case of Shashi Kumar Banerjee
(supra) re-emphasised on the requirement that the propounder has to prove
the legality of execution of the Will as also the genuineness thereof by
proving the testamentary capacity of the testator as also his signatures and
further by proving absence of suspicious circumstances. This Court, inter alia,
said,-
“18……The propounder has to prove the legality of the
execution and genuineness of the said will by proving
absence of suspicious circumstances surrounding the said
will and also by proving the testamentary capacity and the
signature of the testator. Once the same is proved, it could be
said that the propounder has discharged the onus.
40
19. When there are suspicious circumstances regarding the
execution of the will, the onus is also on the propounder to
explain them to the satisfaction of the court and only when
such responsibility is discharged, the court would accept the
will as genuine. Even where there are no such pleas, but
circumstances give rise to doubt, it is on the propounder to
satisfy the conscience of the court. Suspicious circumstances
arise due to several reasons such as with regard to
genuineness of the signature of the testator, the conditions of
the testator's mind, the dispositions made in the will being
unnatural, improbable or unfair in the light of relevant
circumstances or there might be other indications in the will
to show that the testator's mind was not free. In such a case,
the court would naturally expect that all legitimate suspicion
should be completely removed before the document is
accepted as the last will of the testator…..”
10.9.1. In K. Laxmanan (supra), this Court also explained the principles
governing the pleadings in such matters while observing, inter alia, as
under:–
“28. It is however established in the present case that the
issue of validity of the execution of both the deed of gift and
deed of will was taken up by the respondent-plaintiff and
specifically denied in the affidavits filed in respect of the
injunction applications. The parties have also gone to trial
knowing fully well that execution of both these
documents is under challenge. Parties knowing fully the
aforesaid factual position led their evidence also to
establish the legality and validity of both the documents.
In that view of the matter, it cannot be said that the said
document should be deemed to be admitted by the
plaintiff as no replication was filed by the plaintiff.”
(emphasis supplied)
10.10. We may also usefully refer to the principles enunciated in the case
of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, which
were duly taken note of by the High Court in its impugned judgement, as
follows: –
41
“9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an
adversary proceeding becomes in such cases a matter of the
court's conscience and then the true question which arises
for consideration is whether the evidence led by the
propounder of the will is such as to satisfy the
conscience of the court that the will was duly executed
by the testator. It is impossible to reach such satisfaction
unless the party which sets up the will offers a cogent and
convincing explanation of the suspicious circumstances
surrounding the making of the will.”
(emphasis supplied)
11. For what has been noticed hereinabove, the relevant principles
governing the adjudicatory process concerning proof of a Will could be
broadly summarised as follows:–
1. Ordinarily, a Will has to be proved like any other document; the
test to be applied being the usual test of the satisfaction of the
prudent mind. Alike the principles governing the proof of other
documents, in the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required
to be attested, it cannot be used as evidence until at least one
attesting witness has been called for the purpose of proving its
execution, if there be an attesting witness alive and capable of
giving evidence.
3. The unique feature of a Will is that it speaks from the death of
the testator and, therefore, the maker thereof is not available for
deposing about the circumstances in which the same was executed.
42
This introduces an element of solemnity in the decision of the
question as to whether the document propounded is the last Will of
the testator. The initial onus, naturally, lies on the propounder but the
same can be taken to have been primarily discharged on proof of
the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by
suspicious circumstances stands on a different footing. The
presence of suspicious circumstances makes the onus heavier on
the propounder and, therefore, in cases where the circumstances
attendant upon the execution of the document give rise to suspicion,
the propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges
fraud, undue influence, coercion et cetera in regard to the execution
of the Will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as to whether the
Will had indeed been executed by the testator and/or as to whether
the testator was acting of his own free will. In such eventuality, it is
again a part of the initial onus of the propounder to remove all
reasonable doubts in the matter.
6. A circumstance is “suspicious” when it is not normal or is ‘not
normally expected in a normal situation or is not expected of a
43
normal person’. As put by this Court, the suspicious features must
be ‘real, germane and valid’ and not merely the ‘fantasy of the
doubting mind.’
7. As to whether any particular feature or a set of features qualify
as “suspicious” would depend on the facts and circumstances of
each case. A shaky or doubtful signature; a feeble or uncertain mind
of the testator; an unfair disposition of property; an unjust exclusion
of the legal heirs and particularly the dependants; an active or
leading part in making of the Will by the beneficiary thereunder et
cetera are some of the circumstances which may give rise to
suspicion. The circumstances above-noted are only illustrative and
by no means exhaustive because there could be any circumstance
or set of circumstances which may give rise to legitimate suspicion
about the execution of the Will. On the other hand, any of the
circumstance qualifying as being suspicious could be legitimately
explained by the propounder. However, such suspicion or suspicions
cannot be removed by mere proof of sound and disposing state of
mind of the testator and his signature coupled with the proof of
attestation.
8. The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the Will of the testator is
surrounded by suspicious circumstance/s. While applying such test,
the Court would address itself to the solemn questions as to whether
44
the testator had signed the Will while being aware of its contents
and after understanding the nature and effect of the dispositions in
the Will?
9. In the ultimate analysis, where the execution of a Will is
shrouded in suspicion, it is a matter essentially of the judicial
conscience of the Court and the party which sets up the Will has to
offer cogent and convincing explanation of the suspicious
circumstances surrounding the Will.
SUSPICIOUS CIRCUMSTANCES/FEATURES CONCERNING THE WILL
IN QUESTION
12. Having considered the present matter in its totality while keeping the
principles aforesaid in view, we have not an iota of doubt that the High
Court has examined the matter in its correct perspective and there had
been substantial and material reasons for which, the decision of the Trial
Court could not have been upheld; and the High Court has rightly reversed
the same.
13. In summation of the lengthy discussion of the Trial Court, it could be
noticed that some of the major factors which weighed with the Trial Court in
rejecting the objections of the contesting defendants against the Will in
question had been: (i) that the testator Sangappa was not having warmth of
relations with defendant No. 1 and his family and was not willing to give
anything to them; (ii) that even in the earlier Will of the year 1974,
Sangappa had not bequeathed any property to the contesting defendants;
(iii) that the plaintiffs, the grand–nephews of testator’s wife, were residing
45
with the testator; (iv) that the father of the plaintiffs was associated with the
testator in his business and other dealings; (v) that the attesting witnesses
were only the customers of the testator and were naturally chosen as
independent persons to stand as witnesses to the Will; (vi) that the Will in
question was in possession of PW-8 and was opened by him in the
presence of Swamiji; and (vii) that PW-8 had neither any animosity with the
defendants nor was gaining anything from the Will.
13.1 As regards the discrepancies indicated by the defendants, the Trial
Court took the view that mere misdescription of the property was of no
effect, particularly when its identification was not in doubt; and for this very
reason, the Trial Court found the blank spaces as regards the particulars of
the property to be of no effect. As regards mentioning of a past event as
something to happen in future, the Trial Court found that it had no adverse
bearing on the validity of the Will because existence of a tenant in the
property was not going to affect the rights of the testator as also his
legatees. As regards the statement in the Will about likelihood of accident,
the Trial Court observed that the reason for making such a recital was
known to the testator alone. On the suspicious factors concerning the
document itself, the Trial Court observed that use of the sheets of paper of
different colours could be attributed only to the typist who was not known to
propounders. The Trial Court further found that the inconsistency regarding
the dates from the Hindi Calendar and English Calendar were of no effect
because the day of execution of the Will was Monday, as stated by the
46
witnesses. Further, the Trial Court found that the making of signatures by
the testator by different pens on different pages was duly explained by the
witness PW-4.
14. The High Court, on the other hand, felt dissatisfied with the document
itself and found no explanation on record about numerous unnatural
circumstances dilated upon and discussed by it in some of the passages
extracted hereinbefore. Having examined the material placed on record, in
our view, the observations and findings of the High Court remain
unexceptionable.
15. Taking up the document itself, it is not in dispute that the same is
carrying 5 typed pages on 3 different sheets of papers, which are definitely
not of the same colour. It had been noticed by the Trial Court as also by the
High Court, and it remains indisputable, that the said papers are of different
colours and have not been picked up from the same stack. Use of 3
different sheets of paper for typing a document of Will running in 5 pages
(with first and second paper being typed on both sides) is, in any case, not
a normal action by a normal person in normal circumstances. True it is that
this aspect could have been cleared only by the typist and the propounders
are not expected to know the typist, particularly when they had not
participated in execution and attestation of the document but, this
circumstance is enough to indicate that the matter calls for closer scrutiny
with due regard to all the surrounding factors because, ordinarily, such
47
document would be typed in one sitting and on the papers drawn from the
same stack.
15.1. Proceeding further, another feature surfaces, which was found by
the High Court (though not discussed by the Trial Court). This feature is
about the placement of the signatures of the testator on 3 pages, where it is
apparent that on the first and the last page, the distance of signatures from
the typewritten contents is excessive than usual or natural. It is not in
dispute that this feature also emanates from a bare look at the document in
question.
15.2. The aforementioned two features, by themselves, may not be of
material bearing but this much is clear that they stand at contradistinction to
the ordinary course of dealings and give rise to legitimate suspicions about
the genuineness of document. Now, the suspicion arising from the aforesaid
two features is confounded by another factor that though the document
carries 3 signatures of the testator, the same are not made from the same
pen. It has been noticed, and again it remains indisputable, that while the
signature of the testator at page number 1 are from an ink pen, that at page
number 3 is from a ballpoint pen and then, again at page number 5, it is
from an ink pen. The witness PW-4 has attempted to say that for the ink
pen being not working properly, ballpoint pen was used. It sounds utterly
unnatural and remains inexplicable that if the ink pen was not working and
the second signature was made from a ballpoint pen, as to how and why
the third signature, that is, the last one, was again made from another ink
48
pen? It had not been the explanation of the attesting witnesses that after
making the signature at page number 3, the ballpoint pen also stopped
working and, therefore, another ink pen was used for making the third
signature. We may observe that even when the possibility of the testator
using different pens or instruments for his signatures on different pages of
the same document is not ruled out altogether and even this fact, by itself,
may not be decisive of the matter but, this much is certain that such
happening cannot be categorised as normal or natural in the course of
execution of a document of Will.
15.3 Therefore, in the present case, three features of the document Ex.
P.4, carrying unusual characteristics of their own, manifest themselves on
the face of the record and nothing but a bare look at the document is
sufficient to notice them. The aforesaid three unnatural and unusual
features of the document in question, where different sheets of paper have
been used; where placement of the signatures of the testator at least at two
places is beyond normal distance from the last typed matter; and where in
making of three signatures, at least two different pens were used, make it
clear that a deeper probe is called for to find as to whether this document
could at all be accepted as the last Will of the testator.
15.4. When the exploration is pushed slightly further, another major
feature comes to the fore, which has been noticed by the High Court but
which escaped the attention of the Trial Court altogether. The document in
question is said to be a Will running in 5 pages which is typed (in kannada
49
script) on 3 sheets of papers with the first and second sheets carrying the
typewritten contents on both sides; page number 2 being typed on the
backside of page number 1 and page number 4 being typed on the
backside of page number 3. The significant feature is that page number 2
and page number 4 of this document Ex. P.4 do not carry any signature at
all!
15.4.1. It is apparent on the face of the record that even when the front
facing pages i.e., page numbers 1, 3 and 5 carry the signatures of the
testator, the backside pages i.e., page number 2 and page number 4 are
not signed at all and have gone unsigned. When this material aspect is
added to the above-referred three unusual features, the probative value of
this document Ex. P.4 is shaken to the core and it becomes a serious
question as to whether this document could be considered to be a Will that
was got typed and signed by the testator in the presence of the alleged
attesting witnesses.
15.4.2. In relation to this aspect of want of signatures of the testator on
page number 2 and page number 4, we may also observe that as per the
requirement of clause (b) of Section 63 of the Succession Act, the signature
or mark of the testator is to be so placed that it shall appear that by such
signature or mark, the intention was to give effect to the writing as a Will. Of
course, when no specific form of making a Will is provided, in a given case,
depending on the relevant facts and circumstances, a document drawn on
several sheets but carrying signature only at the end may also be accepted
50
as a genuine Will where the document was authenticated by only one
signature. However, the scenario like the present one, where the executant
had purportedly signed 3 out 5 typewritten pages while omitting to sign the
other 2, definitely stands at contradistinction to the dealing of any normal
person in normal way. When the signatures of the testator are indeed
available on page numbers 1, 3 and 5, it is difficult to find any plausible
explanation for his omission to sign at page number 2 and page number 4
of the same document. The only explanation could be that the testator
chose to sign the front face of each paper and did not consider it necessary
to sign on the backside of the paper. However, accepting such a frail
explanation, and that too in the face of other unusual features (as noticed
hereinbefore), would tantamount to thrusting the probative value into the
document while ignoring everything that is incongruous to, and incompatible
with, the normal course of happenings.
15.4.3. The indisputable fact that page number 2 and page number 4 of the
document in question (EX. P.4) do not carry the signatures of the testator
whereas other pages do carry his signatures, in our view, places the
document in conflict with, or at least non-compliant with, the requirement of
clause (b) of Section 63 of the Succession Act. The document in question
could be rejected outright for this reason alone. However, having regard to
the circumstances of the case, it would be appropriate to deal with other
factual aspects concerning the document in question before reaching to the
final conclusion.
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15.5. The discussion thus far makes it clear that at least four unusual
features of the document in question are evident on the face of the record.
To recapitulate, the disturbing unusual features of the document in question
are that: (i) it is typewritten on 3 different sheets of paper; (ii) the placement
of signatures of the testator is not of uniformity and excessive space is seen
between the typewritten contents and the signatures on page number 1 and
page number 5; (iii) different pens have been used for signatures on
different pages with ink pen having been used for first and third signatures
(on page number 1 and page number 5) and ballpoint pen having been
used for the second signature (on page number 3); and (iv) all the
typewritten pages do not carry the signatures of the testator, with there
being no signature on page number 2 and page number 4. It does not
require any great deal of elaboration that in the ordinary, normal and usual
course, such a typewritten document is expected to be on the sheets of
paper drawn from the same stack; there would be reasonable uniformity in
placement of the signatures running through the document and every
signature would be placed alongside or at a reasonable distance from the
contents; a single pen or instrument would be used for signing at all places;
and, ordinarily, a maker of the Will would not leave such ambiguity in
expression of his intention as would arise by his signing 3 pages and not
signing 2 other pages of the same document. In fact, in the normal and
ordinary course of dealing, the maker of a Will is least expected to leave
any page of the document unsigned. Although existence of some such
52
unusual features (as noticed above) cannot be ruled out during the course
of typing and signing of the document but when all such unusual features
combine together, the document becomes too vulnerable and cannot be
readily accepted as a genuine document.
16. While proceeding further, we may usefully reiterate the principles
relating to the examination of a document propounded as Will that the
document is not approached with doubts but is examined cautiously and
with circumspection. For what has been noticed hereinabove, the document
in question carries several such features of unusualness which travel into
the realm of abnormalities. The matter does not rest with such abnormalities
only. These abnormal features get confounded with other unusual features
available in the contents of this document. Indisputably, several blank
spaces are found in relation to the particulars of the properties and even
some of the properties are not correctly described. Yet further, the dates
mentioned in the document with reference to Hindi Calendar and English
Calendar do not match. Yet another curious feature is the recital in the
document of a past event (about vacating of the shop by the tenant in the
year 1990) in the manner that such event shall happen in future. Therefore,
the abnormalities relating to paper, pen and signature get magnified with
blank spaces in the document as also with incorrect and inexplicable
recitals.
17. The problems relating to the probative value of the document Ex. P.4
do not end with the aforementioned abnormal features and curious factors.
53
A close examination of this document takes us from abnormalities to
mysteries too. In the opening passage of this document, the recital is to the
effect that the testator was making the Will because so many accidents do
happen. The fact remains that the testator and his wife both died in the car
accident on 20.05.1994 but, it would require travelling into an entirely
mystical region to accept that while making the Will on 20.05.1991, the
testator had the premonition that he would perish in a vehicular accident.
18. As noticed, even when a fishing enquiry with digging of the faults
and lacuna is not to be resorted to while examining a Will but, and at the
same time, the real and valid suspicions which arise because of anything
standing beyond normal happening or conduct cannot be ignored either.
Ignoring or brushing aside all the features noticed in relation to the
document in question would require taking up an individual feature and
ignoring it as being trivial or minor and then, proceeding with the belief that
it had only been a matter of chance that all the abnormalities somehow
chose to conglomerate into this one document. Such an approach would,
obviously, be detached from realities and cannot be adopted. It needs
hardly any emphasis that examination of a document propounded as Will
has to be on the norms of reality as also normalcy; and the overall effect of
all the features and circumstances is required to be examined.
19. When all the aforesaid abnormal, curious and rather mysterious
circumstances are put together, the inescapable conclusion is that the
document in question cannot be accepted as the last Will of the testator.
54
The unexplained, unusual and abnormal features pertaining to the
document only lead to the logical deduction that the document in question
was prepared after the demise of the testator with use of blank signed
papers that came in possession of the propounders and their associates.
The High Court has stated such deduction after thorough examination of
the material on record and, in our view, rightly so. It is noticed that all the
features and factors indicated hereinabove are very much available on the
face of the record. However, the Trial Court, even while dealing with several
contentions in excessive details, either failed to notice some of the features
indicated above or simply brushed aside the particular feature carrying
abnormality with the observations to the effect that the propounders were
not to be expected to remove the suspicions concerning the document
when they had no role in its execution. The Trial Court having, obviously,
misdirected itself on several of the key and pivotal factors, its decision could
not have been approved.
19.1. It is sought to be contented on behalf of the appellants that using of
blank papers had not been the objection taken by the defendants. The
contention remains bereft of substance for the simple reason that the
defendants indeed asserted that the document in question was a fabricated
one. The likelihood of it being drawn on the available blank papers with
signatures of the testator is nothing but a deduction that logically comes out
of the examination of the document in question.
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20. Much emphasis is laid on behalf of the appellants on the
submissions that execution of the Will in accordance with the requirements
of Section 63 of the Succession Act and Section 68 of the Evidence Act has
been duly established on record with the testimony of the attesting
witnesses as also the witness with whom the Will along with the handwritten
draft of the Will had been deposited by the testator. The submissions so
made on behalf of the appellants cannot be accepted for the reason that
mere proof of the document in accordance with the requirements of Section
68 of the Evidence Act is not final and conclusive for acceptance of a
document as a Will. When suspicious circumstances exist and the
suspicions have not been removed, the document in question cannot be
accepted as a Will.
21. Even the aspect suggested on behalf of the plaintiffs and their
witnesses that the document in question (Ex. P.4) was drawn up as a Will
and was placed in a sealed cover with the handwritten draft (Ex. P.3) has its
own shortcomings and the share of abnormalities. It remains indisputable
that the said draft (Ex. P.3) had remained incomplete. It may be assumed
that the same was being drawn up by the testator in his own handwriting for
finally making his last Will after he had revoked the earlier Will but, it had
remained incomplete draft only. If the testator himself had got his Will typed
and then, took care to have it executed in the presence of 4 attesting
witnesses; and if he intended such executed document to operate as his
Will; and also had the intention that his Will be kept in a sealed cover to be
56
opened before Swamiji, in the ordinary course of dealings, it was least
expected of him to put the said incomplete draft also in the envelope
because placing of such incomplete draft could have only created confusion
in regard to the actual Will, if there were any. Taking an overall view of the
matter, the preponderance of probability is only to the effect that the entire
story about execution of Will by the deceased Sangappa has been cooked
up with use of readily available signed papers (though of different sheets of
paper and with signatures with different instruments) and, in order to
suggest some authenticity, the story of sealed envelope and leaving of the
same with PW-8 was sought to be inserted. This feature only operates
against the plaintiffs where it carries another unexplained unusualness.
22. The Trial Court had largely been swayed by the fact that the
deceased Sangappa was not inclined to give any property to the defendant
No. 1 and his family as had been the case of the earlier Will executed by
him in the year 1974. Admittedly, the said Will of the year 1974 was
cancelled by Shri Sangappa on 26.09.1990. He perished in the vehicular
accident on 20.05.1991. Whether he intended to bequeath any property to
the defendants or not is hardly of any bearing in relation to the suspicious
circumstances noticed above.
23. Having dilated on various major features which, individually and
cumulatively, lead only to the conclusion that the document in question
cannot be accepted to be the last Will of late Shri Sangappa, it does not
appear necessary to discuss several other shortcomings in the case of the
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plaintiffs, including various other factors like that the plaintiffs never took
steps to get the statement of the said Swamiji recorded, who was otherwise
referred to by all the material witnesses as being the person before whom
the document was allegedly opened.
24. In our view, the document in question falls flat at the very first
question indicated in the case of H. Venkatachala Iyenger (supra) that is, as
to whether the testator signed the Will in question. The answer to this
question is only in the negative. This is apart from the fact that the
document in question, propounded as a Will, is non-compliant with the
requirements of clause (b) of Section 63 of the Succession Act.
24.1. In the ultimate analysis, we are satisfied that the High Court was
right in reversing the decision of the Trial Court and in holding that the
contested Will was not a genuine document.
WHETHER REMAND WAS CALLED FOR
25. Taking up the other point for determination, the submission of
learned counsel for the appellants that the High Court ought to have
considered remanding the case by taking recourse to the provision
contained in Order XLI Rule 23A CPC, in our view, remains totally bereft of
substance; this submission has only been noted to be rejected.
25.1. The procedure relating to appeals from original decrees (usually
referred to as ‘regular first appeal’) is provided in Order XLI of the Code of
Civil Procedure, 1908 and therein, various provisions relating to hearing of
an appeal, remand of case, remitting of issues for trial, production of
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additional evidence in Appellate Court etc. are contained in Rules 16 to 29
under the sub-heading ‘Procedure on hearing’. For their relevance, we may
take note of the provisions contained in Rules 23, 23A, 24 and 25 of Order
XLI CPC as follows: -
“23. Remand of case by Appellate Court.- Where the
Court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the decree
is reversed in appeal, the Appellate Court may, if it thinks fit,
by order remand the case, and may further direct what issue
or issues shall be tried in the case so remanded, and shall
send a copy of its judgment and order to the Court from
whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil
suits, and proceed to determine the suit; and the evidence (if
any) recorded during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand.
23A. Remand in other cases.- Where the Court from whose
decree an appeal is preferred has disposed of the case
otherwise than on a preliminary point, and the decree is
reversed in appeal and a re-trial is considered necessary, the
Appellate Court shall have the same powers as it has under
rule 23.
24. Where evidence on record sufficient, Appellate
Court may determine case finally.- Where the evidence
upon the record is sufficient to enable the Appellate Court to
pronounce judgment, the Appellate Court may, after resettling
the issues, if necessary, finally determine the suit,
notwithstanding that the judgment of the Court from whose
decree the appeal is preferred has proceeded wholly upon
some ground other than that on which the Appellate Court
proceeds.
25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree appealed
from.-Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit upon
the merits, the Appellate Court may, if necessary, frame
issues, and refer the same for trial to the Court from whose
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decree the appeal is preferred, and in such case shall direct
such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall
return the evidence to the Appellate Court together with its
findings thereon and the reasons therefor within such time as
may be fixed by the Appellate Court or extended by it from
time to time.”
25.2. Rule 23A came to be inserted in Order XLI CPC by way of the Code
of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was
generally accepted by the Courts that although under Rule 23, an order of
remand could be made only on reversal of a decree disposing of suit on a
preliminary point but, the Appellate Court has the inherent power of
remanding a case where it was considered necessary to do so in the
interest of justice. Some of the High Courts had made similar provisions by
way of their respective amendments. Insertion of Rule 23A in Order XLI by
the Amending Act of 1976 makes it explicit that even when the suit has
been disposed of otherwise than on a preliminary point and the decree is
reversed in appeal, the Appellate Court shall have the power of remand, if a
re-trial is considered necessary.8
25.3. A comprehension of the scheme of the provisions for remand as
contained in Rules 23 and 23A of Order XLI is not complete without
8 Such powers of remand, as provided in Rules 23 and 23A of Order XLI, are different than the
power of the Appellate Court to remit an issue for findings under Rule 25. The power of remitting is
ordinarily to be resorted to when the Trial Court has omitted to try any material issue or to determine
any question of fact. In other words, the proper procedure in a case where the Trial Court, while
disposing of the suit on merits, had failed to determine one or more of the material issues/questions,
is to remit the issue/question(s) under Rule 25 and not to remand the whole case for re-trial.
Ordinarily, in the case of an order under Rule 25 of Order XLI, the matter is retained on the file of the
Appellate Court and only the issue/question(s) are remitted to the Trial Court for findings. On the
other hand, when an order of remand is made under Rule 23 or Rule 23A, the whole case goes
back for decision to the Trial Court except on the point on which the Appellate Court has returned
concluded finding, if any. While making a remand under Rule 23 or Rule 23A, the judgment and
decree of the Trial Court is required to be set aside but it is not necessary to set aside the impugned
judgment and decree when taking recourse to Rule 25 of Order XLI.
60
reference to the provision contained in Rule 24 of Order XLI that enables
the Appellate Court to dispose of a case finally without a remand if the
evidence on record is sufficient; notwithstanding that the Appellate Court
proceeds on a ground entirely different from that on which the Trial Court
had proceeded.
25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth
the scope as also contours of the powers of remand that when the available
evidence is sufficient to dispose of the matter, the proper course for an
Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and
to determine the suit finally. It is only in such cases where the decree in
challenge is reversed in appeal and a re-trial is considered necessary that
the Appellate Court shall adopt the course of remanding the case. It
remains trite that order of remand is not to be passed in a routine manner
because an unwarranted order of remand merely elongates the life of the
litigation without serving the cause of justice. An order of remand only on
the ground that the points touching the appreciation of evidence were not
dealt with by the Trial Court may not be considered proper in a given case
because the First Appellate Court itself is possessed of jurisdiction to enter
into facts and appreciate the evidence. There could, of course, be several
eventualities which may justify an order of remand or where remand would
be rather necessary depending on the facts and the given set of
circumstances of a case.
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25.4.1. The decision cited by the learned Counsel for the appellants in the
case of Mohan Kumar (supra) is an apt illustration as to when the Appellate
Court ought to exercise the power of remand. In the said case, the
appellant and his mother had filed the civil suit against the Government and
local body seeking declaration of title, perpetual injunction and for recovery
of possession in respect of the land in question. The Trial Court partly
decreed the suit while holding that the plaintiffs were the owners of the land
in dispute on which trespass was committed by the respondents and they
were entitled to get the encroachment removed; and it was also held that
the Government should acquire the land and pay the market value of the
land to the appellant. Such part of the decree of the Trial Court was not
challenged by the defendants but as against the part of the decision of the
Trial Court which resulted in rejection of the claim of the appellant for
allotment of an alternative land, the appellant preferred an appeal before
the High Court. The High Court not only dismissed the appeal so filed by
the appellant but proceeded to dismiss the entire suit with the finding that
the plaintiff-appellant had failed to prove his ownership over the suit land
inasmuch as he did not examine the vendor of his sale deed. In the given
circumstances, this Court observed that when the High Court held that the
appellant was not able to prove his title to the suit land due to nonexamination of his vendor, the proper course for the High Court was to
remand the case to the Trial Court by affording an opportunity to the
appellant to prove his title by adducing proper evidence in addition to what
62
had already been adduced. Obviously, this Court found that for the
conclusion reached by the High Court, a case for re-trial was made out
particularly when the Trial Court had otherwise held that the appellant was
owner of the land in dispute and was entitled to get the encroachment
removed as also to get the market value of the land. Such cases where retrial is considered necessary because of any particular reason and more
particularly for the reason that adequate opportunity of leading sufficient
evidence to a party is requisite, stand at entirely different footings than the
cases where evidence has already been adduced and decision is to be
rendered on appreciation of evidence. It also remains trite that an order of
remand is not to be passed merely for the purpose of allowing a party to fillup the lacuna in its case.
25.5. It gets perforce reiterated that the occasion for remand would arise
only when the factual findings of Trial Court are reversed and a re-trial is
considered necessary by the Appellate Court.
25.6. The present case had clearly been the one where the parties had
adduced all their evidence, whatever they wished to; and it had not been
the case of the plaintiff-appellants that they were denied any opportunity to
produce any particular evidence or if the trial was vitiated because of any
alike reason. As noticed, there had been several suspicious circumstances
surrounding the Will in question, some of which were noticed by the Trial
Court but were brushed aside by it on untenable reasons. The High Court
has meticulously examined the same evidence and the same
63
circumstances and has come to a different conclusion that appears to be
sound and plausible, and does not appear suffering from any infirmity.
There was no reason or occasion for the High Court to consider remanding
the case to the Trial Court. The contention in this regard is required to be,
and is, rejected.
CONCLUSION
26. For what has been discussed hereinabove, we are satisfied that the
High Court has rightly interfered with the decision of the Trial Court and has
rightly held that the document in question cannot be accepted as the
genuine Will of the deceased Sangappa; and there was no reason for the
High Court to remand the case to the Trial Court.
27. Accordingly, and in view of the above, this appeal fails and is,
therefore, dismissed while leaving the parties to bear their own costs
throughout.
………………..………….J.
(A.M.KHANWILKAR)
…………..…………….….J.
(HEMANT GUPTA)
…………..………….…….J.
(DINESH MAHESHWARI)
New Delhi,
Dated: 24th April, 2020.
64
