* Author
[2024] 3 S.C.R. 146 : 2024 INSC 164
Thangam and Another
v.
Navamani Ammal
(Civil Appeal No. 8935 of 2011)
04 March 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]
Issue for Consideration
Genuineness of the Will, a registered document, executed by
testator (husband of appellant no.1 and father of appellant no.2)
in favour of respondent-plaintiff (daughter of his brother).
Headnotes
Will – Genuineness of – When not surrounded by suspicious
circumstances – By way of Will, the testator bequeathed a
part of his property in favour of the respondent-daughter of
his brother – Names of his widow-appellant no.1 and minor
daughter- appellant no.2 were not mentioned in the Will –
Suit filed by the respondent for declaration and injunction
was decreed, Will was held to be genuine by the Trial Court
– Decree of the Trial Court reversed by First Appellate
Court – High Court restored the decree of the Trial Court –
Correctness:
Held: From the evidence of the witnesses with reference to the
health of the testator, the Will cannot be held to be suspicious on
the ground of the alleged ill-health of the testator at the time of
the its execution – It is the admitted case of the appellants that
the testator left behind about 8 acres of land and three houses
– What was bequeathed to the respondent was merely a part of
testator’s entire property i.e. land measuring approximately 3.5
Acres – Meaning thereby the balance property of the testator was
in possession of widow and daughter – This is how the interest of
the natural legal heirs was taken care of – The reason to bequeath
a part of the property in favour of the respondent is also evident
from the material available on record – No error committed by
the High Court in holding that the Will was not surrounded by the
suspicious circumstances as the scribe and one of the witnesses
were unison – The testator was conscious of the fact that he had
[2024] 3 S.C.R. 147
Thangam and Another v. Navamani Ammal
a wife and a minor child whose interest had been taken care of
by leaving part of the property for them – No merit in the appeal.
[Paras 9.5, 12, 13 and 16]
Code of Civil Procedure, 1908 – Order VIII Rules 3 and 5 –
Specific admission and denial of the pleadings – Need of –
Emphasised – Plaint filed by the respondent contained ten
paragraphs besides the prayer – In the written statement filed
by the appellants, there was no specific denial to the claim
made by the respondent, no para-wise reply was given – In
absence thereof, the allegations in the plaint were deemed
to be admitted:
Held: In the absence of para-wise reply to the plaint, it becomes
a roving inquiry for the Court to find out as to which line in some
paragraph in the plaint is either admitted or denied in the written
statement filed, as there is no specific admission or denial with
reference to the allegation in different paras – Order VIII Rules
3 and 5 CPC clearly provides for specific admission and denial
of the pleadings in the plaint – A general or evasive denial is not
treated as sufficient – Proviso to Order VIII Rule 5 CPC provides
that even the admitted facts may not be treated to be admitted, still
in its discretion the Court may require those facts to be proved –
This is an exception to the general rule – General rule is that the
facts admitted, are not required to be proved – The requirement of
Order VIII Rules 3 and 5 CPC are specific admission and denial
of the pleadings in the plaint – The same would necessarily mean
dealing with the allegations in the plaint para-wise. [Paras 15-15.2]
Case Law Cited
Badat and Co. Bombay Vs. East India Trading Co.,
[1964] 4 SCR 19 : AIR 1964 SC 538; Lohia Properties
(P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram
Kumar, (1993) 4 SCC 6 – relied on.
List of Acts
Code of Civil Procedure, 1908.
List of Keywords
Will; Genuineness; Not surrounded by suspicious circumstances;
Interest of the natural legal heirs taken care of; Pleadings; Admission
and denial of the pleadings.
148 [2024] 3 S.C.R.
Digital Supreme Court Reports
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.8935 of 2011
From the Judgment and Order dated 18.04.2007 of the High Court
of Madras in SA No.1344 of 1996
Appearances for Parties
K. K. Mani, Ms. T. Archana, Rajeev Gupta, Advs. for the Appellants.
Pulkit Tare, D. Kumanan, Sandeepan Pathak, Suvendu Suvasis
Dash, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Rajesh Bindal, J.
1. The issue under consideration in the present appeal is regarding
genuineness of the Will dated 09.10.1984, which is a registered
document, executed by Palaniandi Udyar in favour of Navamani
Amma.
2. A suit1
filed by the respondent/plaintiff for declaration and injunction
was decreed by the Trial Court2
, holding the Will to be genuine. In
appeal3
by the appellants, judgment and decree of the Trial Court was
reversed by the First Appellate Court4
. In second appeal5
filed by the
respondent the judgment and decree of the First Appellate Court was
set aside and that of the Trial Court was restored by the High Court6
.
3. Before we embark upon to consider the issues in detail, we deem it
appropriate to mention the relations between the parties and certain
brief facts.
3.1. The testator of the Will dated 09.10.1984, Palaniandi Udayar,
was the husband of appellant no. 1 Thangam and father of
appellant no. 2 Laila.
1 O.S. No. 402 of 1986.
2 Additional District Munsif Court, Ariyalur.
3 Appeal Suit No. 7 of 1991.
4 Subordinate Judge, Ariyalur.
5 Second Appeal No. 1344 of 1996.
6 High Court of Judicature at Madras.
[2024] 3 S.C.R. 149
Thangam and Another v. Navamani Ammal
3.2. The Will was executed on 09.10.1984 in favour of Navamani
Amma/Plaintiff, who as per the narration in the Will is said to
be daughter of the brother of the testator.
3.3. The defendant in the suit originally filed was widow of the testator,
however, later on his minor daughter was also impleaded. Both
are the appellants before this Court.
3.4. The appellant no. 1 is the third wife of the testator. The earlier
two wives expired and were not having any child from the loins
of the testator.
3.5. Even as per the admitted case of the defendant no. 1/widow
of the testator, the testator was having total land about 8 acres
besides three houses.
3.6. By way of Will, the testator had bequeathed approximately 3.5
Acres of land in favour of the plaintiff stating therein that she is
like his daughter, being daughter of his brother. The value of
the suit property was estimated to be about ₹16,000/-.
ARGUMENTS
4. In the aforesaid factual matrix, the argument raised by learned counsel
for the appellants challenging the judgment and decree of the High Court
was that the execution of Will was surrounded by various suspicious
circumstances and deserves to be discarded as was rightly done by the
First Appellate Court. The finding of facts recorded by the First Appellate
Court was erroneously reversed by the High Court without the same
being perverse. Re-appreciation of the facts merely to come to another
possible conclusion does not fall within the scope of consideration
of a matter in second appeal. There was no substantial question of
law involved in the second appeal before the High Court. There were
discrepancies in the statements of the scribe and the attesting witnesses
to the Will. The health of the testator was not good and he was not
in a position to understand and comprehend the contents of the Will.
There were differences in the thumb impressions of the testator on the
Will and on the register in the office of the Sub-Registrar.
5. Though, admittedly the testator left behind his widow and a minor
daughter but there is no mention in the Will about the same.
How their interest was taken care of, the Will is silent. In fact, the
appellants were in possession of the suit property. The suit filed by
the respondent was totally misconceived.
150 [2024] 3 S.C.R.
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6. On the other hand, learned counsel for the respondent submitted
that the execution of Will by a person in favour of any other relative
always would mean that the testator wishes to take away some
property from the normal course of inheritance. In fact, the respondent
being like daughter to the testator was taking care of his health,
who was suffering from asthma and chronic cough. It is not that the
entire property owned by the testator was given to the respondent
by way of Will, rather it was only a part thereof. She is in possession
of the suit property after the death of the testator. The need to file
the suit arose more than two years after the death of the testator
as her possession was disturbed by the appellants. Otherwise also
the appellants had not taken any step to take care of the testator
when he was not keeping good health or the property left by him
after his death. Admittedly, the appellant no. 1 was living away from
the testator. Even at the time of his death the appellants were not
present as she came later on. Even the expenses for performing last
rites of the testator were borne by the husband of the respondent.
There is no error in the judgment of the High Court. The findings
recorded by the First Appellate Court being totally perverse were
rightly interfered by the High Court.
6.1. In the written statement filed by the appellants, there was no
specific denial to the claim made by the respondent/plaintiff.
No para-wise reply was given. In the absence thereof, the
allegations in the plaint were deemed to be admitted.
DISCUSSION
7. Heard learned counsel for the parties and perused the relevant
referred record. We may record that the translated copies of whatever
documents have been placed on record by the parties, are being
considered as such as to the same, no dispute has been raised by
the either side.
8. What is required to be considered while examining the correctness of
the judgment of the High Court is as to whether the Will in question
was surrounded by suspicious circumstances whereby the testator
had not mentioned the names of his widow and minor daughter in
the Will and has bequeathed a part of his property to the respondent.
8.1. The appellant no. 1 is the third wife of the testator whereas
the appellant no. 2 is the daughter. From the earlier two wives
no child was born.
[2024] 3 S.C.R. 151
Thangam and Another v. Navamani Ammal
9. Firstly, coming to the health of the testator the Plaintiff/PW-1 stated
in her examination-in-chief that though the testator was having
Asthma but otherwise he was in good health condition. In her
Cross-Examination PW-1 stated that the testator was suffering from
Asthma and Cough for about 5 to 6 years. She denied that the
testator was having any drinking habit. She denied the suggestion
that the testator was bed-ridden for three months before executing
the Will.
9.1. PW-2/Vadivelu, who is an attesting witness to the Will, in his
cross-examination stated that he inquired about the health of
the testator and he told PW-2 that he was having some cough
problem and was otherwise suffering from T.B.
9.2. PW-3/Govindasamy, who was a witness in the office of SubRegistrar, in his cross-examination stated that at the time of
execution of Will the testator was having cough.
9.3. PW-4/Subramanian, who is Scribe of the Will, stated in his
examination-in-chief that at the time of execution of Will the
testator was in good physical condition and he was having
cough only. He was not put any question in this regard in
cross-examination.
9.4. DW-1/Thangam Ammal, who is the widow of the testator, stated
in her examination-in-chief that before his death the testator
‘was suffering from lever wound and he had dysentery and
suffered very much’ (sic). DW-1 in her cross-examination sated
that three months before his death the testator was not in good
physique and before that he was in good condition. DW-1 further
stated that the testator was bed ridden for 3 months and she
was taking care of him.
9.5. From the aforesaid evidence of the witnesses with reference
to the health of the testator we do not find that he was not
in good senses and was unable to understand his welfare or
take correct decisions. Hence, the Will cannot be held to be
suspicious on the ground of the alleged ill-health of the testator
at the time of the execution of the Will.
10. Now, coming to another aspect with reference to the genuineness of
the Will, the PW-4/Subramanian, who is scribe of the Will, stated in
his examination-in-chief that the testator had put his thumb impression
152 [2024] 3 S.C.R.
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on the Will and that he witnessed the same. He further stated the
Will was registered in the office of Sub-Registrar.
10.1. In his cross-examination, he stated that on enquiry testator
told him that the Plaintiff can take the suit property and other
properties can be taken by the Defendants i.e., his wife and
daughter. This shows that even at the time of execution of the
Will, the testator was fully conscious of the welfare of his widow
and minor daughter as sufficient property was left for them.
11. The Plaintiff examined PW-2/Vadivelu, who was the attesting witness
to the Will. In his examination-in-chief he stated that the testator was
very well known to him and that he was witness in the above Will. He
stated that the Will was written under a tree at Palavur. Details were
given by the Testator. After writing of Will, the testator asked PW-4/
scribe to read over the same. After hearing and being satisfied the
testator had put his thumb impression. He and one other attesting
witness, Muruganian (DW-2), had witnessed the testator putting
thumb impression on the Will. In his cross-examination he stated
that the Will was written without compulsion and in good conscious
were expressed by Testator alone. He asked testator whether he
was having any legal heir and testator told him that as per his desire
alone the Will was written.
11.1. The Defendants examined Murugaian, who was also an
attesting witness to the Will, as DW-2, who in his examinationin-chief stated that he was asked by Paramasivam, who is
husband of the Plaintiff, to be witness in the office of SubRegistrar. He further stated that he was requested to sign
as witness and after putting his signature he returned. DW-2
further stated that he did not see the testator put his thumb
impression. In Cross-examination DW-2 stated that he saw
the testator sitting under a tree and that the testator told him
that he was writing the Will in favour of his heirs.
12. It is the admitted case of the appellants that the testator left behind
about 8 acres of land and three houses. What has been bequeathed
to the respondent is merely a part of testator’s entire property i.e.
land measuring approximately 3.5 Acres. Meaning thereby the
balance property of the testator is in possession of widow and
daughter. This is how the interest of the natural legal heirs has
been taken care of.
[2024] 3 S.C.R. 153
Thangam and Another v. Navamani Ammal
12.1. The reason to bequeath a part of the property in favour of the
respondent is also evident from the material available on record.
It has come in evidence that the testator was not keeping
good heath as he was suffering from asthma and cough. The
appellants were not living with him for quite sometime as it
is the admitted case of DW-1 in her cross-examination that
she had gone to her paternal home on account of marriage
of her brother and was not living with the testator at the time
of execution of Will. It has also come on record that she was
not present when the testator died. Expenses for his last rites
were borne by the husband of the respondent who was taking
care of the land of the testator.
12.2. There is nothing on record to suggest that the appellants were
taking care of the property left by the testator immediately
after his death or that any steps were taken by them to get
the same mutated in their favour.
13. From the aforesaid evidence on record, in our opinion, no error has
been committed by the High Court in holding that the Will was not
surrounded by the suspicious circumstances as the scribe and one
of the witnesses were unison. The testator was conscious of the fact
that he had a wife and a minor child whose interest had been taken
care of by leaving part of the property for them. It came in response
to a specific question asked by PW-4 to the testator at the time of
execution of the Will. It was so stated by PW-4 in his cross-examination.
Even in para 14 of the written statement, the appellants stated that
they are enjoying the suit properties and other properties left by the
testator. This clearly shows that certain part of the properties was
left by the testator for his widow and minor daughter.
14. Before we part with the judgment we are constraint to observe the
manner in which the pleadings have been filed in the Trial Courts
or may be in some cases in the High Courts.
14.1. A perusal of the plaint filed by the respondent shows that it
contains ten paragraphs besides the prayer. In the written
statement filed by the appellants, no specific para-wise reply
was given. It was the own story of the respondent containing
fifteen paragraphs besides the prayer in para 16.
15. In the absence of para-wise reply to the plaint, it becomes a roving
inquiry for the Court to find out as to which line in some paragraph
154 [2024] 3 S.C.R.
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in the plaint is either admitted or denied in the written statement
filed, as there is no specific admission or denial with reference to
the allegation in different paras.
15.1. Order VIII Rules 3 and 5 CPC clearly provides for specific
admission and denial of the pleadings in the plaint. A general
or evasive denial is not treated as sufficient. Proviso to Order
VIII Rule 5 CPC provides that even the admitted facts may
not be treated to be admitted, still in its discretion the Court
may require those facts to be proved. This is an exception to
the general rule. General rule is that the facts admitted, are
not required to be proved.
15.2. The requirement of Order VIII Rules 3 and 5 CPC are specific
admission and denial of the pleadings in the plaint. The same
would necessarily mean dealing with the allegations in the
plaint para-wise. In the absence thereof, the respondent can
always try to read one line from one paragraph and another
from different paragraph in the written statement to make out
his case of denial of the allegations in the plaint resulting in
utter confusion.
15.3. In case, the defendant/respondent wishes to take any
preliminary objections, the same can be taken in a separate
set of paragraphs specifically so as to enable the plaintiff/
petitioner to respond to the same in the replication/rejoinder,
if need be. The additional pleadings can also be raised in the
written statement, if required. These facts specifically stated
in a set of paragraphs will always give an opportunity to the
plaintiff/petitioner to respond to the same. This in turn will enable
the Court to properly comprehend the pleadings of the parties
instead of digging the facts from the various paragraphs of the
plaint and the written statement.
15.4. The issue regarding specific admission and denial of the
pleadings was considered by this Court in Badat and Co.
Bombay Vs. East India Trading Co7
. While referring to Order
VIII Rules 3 to 5 of the CPC it was opined that the aforesaid
Rules formed an integrated Code dealing with the manner in
7 [1964] 4 SCR 19 : AIR 1964 SC 538.
[2024] 3 S.C.R. 155
Thangam and Another v. Navamani Ammal
which the pleadings are to be dealt with. Relevant parts of
para ‘11’ thereof are extracted below:
"11. Order 7 of the Code of Civil Procedure prescribes,
among others, that the plaintiff shall give in the
plaint the facts constituting the cause of action and
when it arose, and the facts showing the court has
jurisdiction. The object is to enable the defendant
to ascertain from the plaint the necessary facts so
that he may admit or deny them. Order VIII provides
for the filing of a written-statement, the particulars to
be contained therein and the manner of doing so;
XXX XXX XXX
These three rules form an integrated code dealing
with the manner in which allegations of fact in
the plaint should be traversed and the legal
consequences flowing from its non- compliance.
The written statement must deal specifically with
each allegation of fact in the plaint and when a
defendant denies any such fact, he must not do so
evasively, but answer the point of substance. If his
denial of a fact is not specific but evasive, the said
fact shall be taken to be admitted. In such an event,
the admission itself being proof, no other proof is
necessary.”
15.5. The matter was further considered by this Court in Lohia
Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs.
Atmaram Kumar8 after the 1976 Amendment Act in CPC
whereby the existing Rule 5 of Order VIII of the CPC was
numbered as sub-rule (1) and three more sub-rules were added
dealing with different situations where no written statement
is filed. In paras 14 and 15 of the aforesaid judgment, the
position of law as stated earlier was reiterated. The same are
extracted below:
"14. What is stated in the above is, what amount to admit
a fact on pleading while Rule 3 of Order 8 requires
8 (1993) 4 SCC 6.
156 [2024] 3 S.C.R.
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that the defendant must deal specifically with each
allegation of fact of which he does not admit the truth.
15. Rule 5 provides that every allegation of fact in the
plaint, if not denied in the written statement shall be
taken to be admitted by the defendant. What this
rule says is, that any allegation of fact must either be
denied specifically or by a necessary implication or
there should be at least a statement that the fact is
not admitted. If the plea is not taken in that manner,
then the allegation shall be taken to be admitted.”
15.6. We have made the aforesaid observations as regularly this
Court is faced with the situation where there are no specific
para-wise reply given in the written statement/counter affidavit
filed by the defendant(s)/respondent(s). In our opinion, if the
aforesaid correction is made, it may streamline the working.
16. For the reasons mentioned above, we do not find any merit in the
present appeal. The same is, accordingly, dismissed.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal dismissed.
