Specific Performance sec.16 (c) - failure to discharge Bank Loan as per the agreement of sale - filing suit after 7 years for specific performance after filing a suit for recovery of possession by owner - Both lower courts found that the appellant is at fault - Apex court held that there is concurrent finding of fact and the same is evident from the record that the plaintiff (present appellant) has failed to perform his part of contract, as such, in our opinion, above case law is of little help to the plaintiff/appellant, and the courts below have not erred in law in not granting the relief of specific performance of contract to the plaintiff in OS.No.37 of 1985. For the reasons as discussed above, we find no illegality in the judgment and orders challenged before us. Accordingly, both the appeals are dismissed with costs.= CIVIL APPEAL NOs.6071-6072 OF 2007 TELIKICHERLA SESIBHUSHAN (DEAD) BY LRS ……………APPELLANTS VERSUS KALLI RAJA RAO (DEAD) BY LRS & ORS. ……………RESPONDENTS =2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41892

Specific Performance sec.16 (c) - failure to discharge Bank Loan as per the agreement of sale - filing suit after 7 years for specific performance after filing a suit for recovery of possession by owner - Both lower courts found that the appellant is at fault - Apex court held that there is concurrent finding  of  fact  and the same is evident from the record that the plaintiff  (present  appellant) has failed to perform his part of contract, as such, in our  opinion,  above
case law is of little help  to  the  plaintiff/appellant,  and   the  courts below have not erred  in  law  in  not  granting   the  relief  of  specific performance of contract to the plaintiff in OS.No.37 of 1985. For the reasons as discussed above,  we  find  no  illegality  in  the judgment and orders challenged before us. Accordingly, both the appeals  are dismissed with costs.=

respondent-  Kalli  Raja  Rao
(since dead) agreed to sell the  property  measuring  an  area  of  Ac.19.96
cents situated at Pulla village of Eluru Taluk  for an amount of Rs.80,000/-
 (Rupees eighty thousand only) under the agreement of sale (  Ex.A/1)  dated
10th May, 1980.
The said agreement discloses  that  respondent-  Kalli  Raja
Rao had taken a loan of Rs.20,000/- (Rupees twenty thousand only)  from  the
State Bank of India, Eluru Branch, in the year 1969 and he could  not  repay
the loan, as such,  he intended to sell his land, and the present appellant-
 Telikicherla Sesibhushan  agreed to repay the  loan  amount  with  interest
due from Kalli Raja Rao, to the Bank.
It appears that the appellant  though
made certain payments but failed  to  repay  the  entire  loan  amount  with
interest.
Consequently, the Bank instituted a suit being O.S.No.208 of  1981
against the debtor for recovery of the amount before the Subordinate  Judge,
Eluru.
Later, in the said suit the present appellant got  himself  impleaded
as a party. The suit filed by the Bank  for  recovery  of  Rs.46,408.85  was
decreed  with  interest  on  31st  December,  1986  and  the  same  attained
finality.
Since the commitment made by the appellant was  not  fulfilled  by
him regarding the repayment of the loan amount,  as  such,  Kalli  Raja  Rao
filed  suit being O.S. No.28 of 1985 before  the  Subordinate  Judge,  Eluru
against the appellant for recovery  of  possession  of  land  which  he  had
delivered to him at the time of aforesaid agreement of sale.
On  this,  the
appellant appears to have filed O.S.No.37 of 1985 after a  period  of  seven
years of agreement against  Kalli  Raja  Rao  for  specific  performance  of
contract,  before  the  Subordinate  Judge,  Eluru.  
Both  the  suits   i.e.
O.S.No.28 of 1985 and  O.S.No.37  of  1985  were  disposed  of  vide  common
judgment and order dated 12th June, 1996. 
The concluding part  of  the  said
judgment and order of the trial court reads as under:

“ 26.  In the result, O.S.No.28/85 is dismissed. The court  fee  payable  on
the plaint in O.S.No.28/85 shall be collected from  out  of  the  estate  of
late Rajarao which will come into the hands of his legal  heirs,  Plaintiffs
2 to 10 . O.S.No.37/85 is partly allowed with the following conditions:-

The Defendants 2 to 10 shall deposit an amount of Rs.71,552-45 paise in  the
court within three months from today,  and  the  plaintiff  is  entitled  to
withdraw the above amount to be deposited in the court.

The  plaintiff  shall  surrender  the  possession  of  the  plaint  schedule
properties of the Defendants 2 to 10 within  one  month  from  the  date  of
deposit of Rs.71,552-45 paise to be made by the Defendants 2 to  10  in  the
Court.

In view of the relationship between the parties and in view of  the  present
facts of the case, I am not inclined to make any order as to costs  in  both
the suits.”

From the above quoted para it is clear that the suit filed by Kali Raja  Rao
was dismissed, and the suit filed by the appellant for specific  performance
of contract was not decreed but the amount paid by him towards repayment  of
loan was directed to be paid back to him.=
High court
 51.   In the result, A.S. 2052 of 1996 is dismissed confirming the  decree
and judgment in O.S. 37 of 1985 of the trial  Court.  A.S.2652  of  1996  is
allowed, and consequently O.S.28 of 1985 is decreed  subject  to  fulfilling
of conditions  imposed in the decree in  O.S.37  of  1985  the  vendors  are
entitled to possession on deposit of amount as directed by the trial  Court
=
It is clear from the record  that  there is  concurrent  finding  of
fact  against the present  appellant  by both the  courts  below  that   the
appellant failed to prove that he had been ready and willing to perform  his
part  of  the contract. 
Having gone through the papers on record,  we   find
that since the present appellant failed to repay the entire loan  amount  in
terms of the agreement, and the  suit   filed   by   the  Bank  against  the
debtor    for    recovery    of    remaining    amount    of    loan     was
decreed, as such, there was ample  evidence  on  record  to  hold  that  the
appellant failed to perform his part of contract,  as  such,  it  cannot  be
said that he is entitled to the relief of specific performance of  contract.

It is pertinent to mention here that the suit for  specific  performance  of
contract was filed by  the  plaintiff/appellant  after  a  period  of  seven
years, and it is not proved on  the  record  that  the  plaintiff  had  been
always ready and willing to perform his part of contract.=

 In the case of Aniglase Yohannan vs. Ramlatha & Ors. (2005) 7 SCC  534
in which reliance has been placed on behalf of the appellant,  it  has  been
held that where from the pleadings   and  evidence  of  the  parties  it  is
manifest that the plaintiff was ready and willing to  perform  his  part  of
the contract, the relief of specific performance may not be denied  to  him.
 Relevant parts of paragraph 9 and 12 of the said judgment read as under:

“9.    The requirements to be fulfilled  for  bringing  in  compliance  with
Section 16(c) of the Act have been  delineated  by  this  Court  in  several
judgments. Before dealing with the various judgments it is necessary to  set
out the factual position. The agreement for sale was executed  on  15-2-1978
and the period during which the sale was to be completed  was  indicated  to
be [pic]six months. Undisputedly, immediately after the expiry of  the  six-
months’  period,  lawyer’s  notice  was  given  calling  upon  the   present
appellant to execute the sale deed. It is also averred in  the  plaint  that
the plaintiff met the defendant several times and requested him  to  execute
the sale deed. On finding inaction on  his  part,  the  suit  was  filed  in
September 1978. This factual position has been  highlighted  in  the  plaint
itself. The learned Single Judge after  noticing  the  factual  position  as
reflected in the averments in the  plaint  came  to  hold  that  the  plaint
contains  essential  facts  which  lead  to  inference  to  the  plaintiff’s
readiness  and  willingness.  Para  3  of  the  plaint  indicates  that  the
plaintiff was always ready to  get  the  sale  deed  prepared  after  paying
necessary consideration. In para 4 of the plaint, reference  has  been  made
to the lawyer’s notice calling upon the defendant to execute the sale  deed.
In the said paragraph it has  also  been  described  as  to  how  after  the
lawyer’s notice was issued the plaintiff met the defendant. In para 5 it  is
averred that the defendant is bound to execute the sale  deed  on  receiving
the balance amount and the  plaintiff  was  entitled  to  get  the  document
executed by the defendant. It is  also  not  in  dispute  that  the  balance
amount of the agreed consideration was deposited in court simultaneously  to
the filing of the suit.

      Xx         xx          xx
12. The basic principle behind Section 16(c) read with Explanation  (ii)  is
that any person seeking benefit of  the  specific  performance  of  contract
must manifest that his conduct has  been  blemishless  throughout  entitling
him to the specific relief. The provision imposes a personal bar. The  Court
is to grant relief on the  basis  of  the  conduct  of  the  person  seeking
relief. If  the  pleadings  manifest  that  the  conduct  of  the  plaintiff
entitles him to get the relief on perusal of the plaint  he  should  not  be
denied the relief.”


7.       But in the present case, there is concurrent finding  of  fact  and
the same is evident from the record that the plaintiff  (present  appellant)
has failed to perform his part of contract, as such, in our  opinion,  above
case law is of little help  to  the  plaintiff/appellant,  and   the  courts
below have not erred  in  law  in  not  granting   the  relief  of  specific
performance of contract to the plaintiff in OS.No.37 of 1985.
8.    For the reasons as discussed above,  we  find  no  illegality  in  the
judgment and orders challenged before us. Accordingly, both the appeals  are
dismissed with costs.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41892
                                             REPORTABLE


IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NOs.6071-6072 OF 2007





TELIKICHERLA SESIBHUSHAN
(DEAD) BY LRS                      ……………APPELLANTS

                       VERSUS



KALLI RAJA RAO
(DEAD) BY LRS & ORS.      ……………RESPONDENTS




                             J U D G M E N T



PRAFULLA C.PANT,J.



1.    These two appeals are directed against the common judgment  and  order
dated 15th June, 2007 passed by the High Court of Andhra Pradesh  in  Appeal
Suit Nos.2652 and 2052 of 1996.
2.    We have heard learned counsel for the parties and perused  the  papers
on record.
3.    The factual matrix of the case is  that  respondent-  Kalli  Raja  Rao
(since dead) agreed to sell the  property  measuring  an  area  of  Ac.19.96
cents situated at Pulla village of Eluru Taluk  for an amount of Rs.80,000/-
 (Rupees eighty thousand only) under the agreement of sale (  Ex.A/1)  dated
10th May, 1980. The said agreement discloses  that  respondent-  Kalli  Raja
Rao had taken a loan of Rs.20,000/- (Rupees twenty thousand only)  from  the
State Bank of India, Eluru Branch, in the year 1969 and he could  not  repay
the loan, as such,  he intended to sell his land, and the present appellant-
 Telikicherla Sesibhushan  agreed to repay the  loan  amount  with  interest
due from Kalli Raja Rao, to the Bank.  It appears that the appellant  though
made certain payments but failed  to  repay  the  entire  loan  amount  with
interest. Consequently, the Bank instituted a suit being O.S.No.208 of  1981
against the debtor for recovery of the amount before the Subordinate  Judge,
Eluru. Later, in the said suit the present appellant got  himself  impleaded
as a party. The suit filed by the Bank  for  recovery  of  Rs.46,408.85  was
decreed  with  interest  on  31st  December,  1986  and  the  same  attained
finality. Since the commitment made by the appellant was  not  fulfilled  by
him regarding the repayment of the loan amount,  as  such,  Kalli  Raja  Rao
filed  suit being O.S. No.28 of 1985 before  the  Subordinate  Judge,  Eluru
against the appellant for recovery  of  possession  of  land  which  he  had
delivered to him at the time of aforesaid agreement of sale.  On  this,  the
appellant appears to have filed O.S.No.37 of 1985 after a  period  of  seven
years of agreement against  Kalli  Raja  Rao  for  specific  performance  of
contract,  before  the  Subordinate  Judge,  Eluru.  Both  the  suits   i.e.
O.S.No.28 of 1985 and  O.S.No.37  of  1985  were  disposed  of  vide  common
judgment and order dated 12th June, 1996. The concluding part  of  the  said
judgment and order of the trial court reads as under:

“ 26.  In the result, O.S.No.28/85 is dismissed. The court  fee  payable  on
the plaint in O.S.No.28/85 shall be collected from  out  of  the  estate  of
late Rajarao which will come into the hands of his legal  heirs,  Plaintiffs
2 to 10 . O.S.No.37/85 is partly allowed with the following conditions:-

The Defendants 2 to 10 shall deposit an amount of Rs.71,552-45 paise in  the
court within three months from today,  and  the  plaintiff  is  entitled  to
withdraw the above amount to be deposited in the court.

The  plaintiff  shall  surrender  the  possession  of  the  plaint  schedule
properties of the Defendants 2 to 10 within  one  month  from  the  date  of
deposit of Rs.71,552-45 paise to be made by the Defendants 2 to  10  in  the
Court.

In view of the relationship between the parties and in view of  the  present
facts of the case, I am not inclined to make any order as to costs  in  both
the suits.”


From the above quoted para it is clear that the suit filed by Kali Raja  Rao
was dismissed, and the suit filed by the appellant for specific  performance
of contract was not decreed but the amount paid by him towards repayment  of
loan was directed to be paid back to him. It appears that both  the  parties
preferred appeals against the aforesaid judgment and decree  passed  by  the
trial court, and the same were disposed of together by the High  Court  with
the following concluding paragraph:


“ 51.   In the result, A.S. 2052 of 1996 is dismissed confirming the  decree
and judgment in O.S. 37 of 1985 of the trial  Court.  A.S.2652  of  1996  is
allowed, and consequently O.S.28 of 1985 is decreed  subject  to  fulfilling
of conditions  imposed in the decree in  O.S.37  of  1985  the  vendors  are
entitled to possession on deposit of amount as directed by the trial  Court.
 The vendors are entitled to mesne profits to be determined  on  a  separate
application  to be filed before the trial Court.  The vendors  are  entitled
to mesne profits to be determined on a  separate  application  to  be  filed
before the trial Court  from the date of suit O.S.28 of 1985 till  the  date
of  possession.  However,  while  evaluating  mesne  profits   the   amounts
deposited by virtue of  this  Court’s  order  namely  Rs.50,000/-  per  year
should be given effect to. The vendors are entitled to withdraw the  amounts
deposited by the vendee pursuant to the orders of this Court.”


4.      It is clear from the record  that  there is  concurrent  finding  of
fact  against the present  appellant  by both the  courts  below  that   the
appellant failed to prove that he had been ready and willing to perform  his
part  of  the contract. Having gone through the papers on record,  we   find
that since the present appellant failed to repay the entire loan  amount  in
terms of the agreement, and the  suit   filed   by   the  Bank  against  the
debtor    for    recovery    of    remaining    amount    of    loan     was
decreed, as such, there was ample  evidence  on  record  to  hold  that  the
appellant failed to perform his part of contract,  as  such,  it  cannot  be
said that he is entitled to the relief of specific performance of  contract.
It is pertinent to mention here that the suit for  specific  performance  of
contract was filed by  the  plaintiff/appellant  after  a  period  of  seven
years, and it is not proved on  the  record  that  the  plaintiff  had  been
always ready and willing to perform his part of contract.
5.    Clause (c) of the Specific Relief Act,  1963  provides  that  specific
performance of contract cannot be enforced in favour of a person  who  fails
to aver and prove that he  has  performed  or  has  always  been  ready  and
willing to perform the essential terms of  the  contract  which  are  to  be
performed by him, other than terms the performance  of  which  he  has  been
prevented or waived by the defendant.  In the  present  case,  as  discussed
above, due to the failure on the part of the appellant to repay the loan  in
terms of the agreement dated 10th May, 1980            (Ex.A.1) and  further
considering the fact that not only the suit being O.S.No.208 of  1981  filed
by the creditor  Bank  was  decreed  against  the  debtor  but  it  attained
finality, the Courts below have committed no error of  law  in  refusing  to
decree the suit of the appellant for specific performance of contract.
6.    In the case of Aniglase Yohannan vs. Ramlatha & Ors. (2005) 7 SCC  534
in which reliance has been placed on behalf of the appellant,  it  has  been
held that where from the pleadings   and  evidence  of  the  parties  it  is
manifest that the plaintiff was ready and willing to  perform  his  part  of
the contract, the relief of specific performance may not be denied  to  him.
 Relevant parts of paragraph 9 and 12 of the said judgment read as under:

“9.    The requirements to be fulfilled  for  bringing  in  compliance  with
Section 16(c) of the Act have been  delineated  by  this  Court  in  several
judgments. Before dealing with the various judgments it is necessary to  set
out the factual position. The agreement for sale was executed  on  15-2-1978
and the period during which the sale was to be completed  was  indicated  to
be [pic]six months. Undisputedly, immediately after the expiry of  the  six-
months’  period,  lawyer’s  notice  was  given  calling  upon  the   present
appellant to execute the sale deed. It is also averred in  the  plaint  that
the plaintiff met the defendant several times and requested him  to  execute
the sale deed. On finding inaction on  his  part,  the  suit  was  filed  in
September 1978. This factual position has been  highlighted  in  the  plaint
itself. The learned Single Judge after  noticing  the  factual  position  as
reflected in the averments in the  plaint  came  to  hold  that  the  plaint
contains  essential  facts  which  lead  to  inference  to  the  plaintiff’s
readiness  and  willingness.  Para  3  of  the  plaint  indicates  that  the
plaintiff was always ready to  get  the  sale  deed  prepared  after  paying
necessary consideration. In para 4 of the plaint, reference  has  been  made
to the lawyer’s notice calling upon the defendant to execute the sale  deed.
In the said paragraph it has  also  been  described  as  to  how  after  the
lawyer’s notice was issued the plaintiff met the defendant. In para 5 it  is
averred that the defendant is bound to execute the sale  deed  on  receiving
the balance amount and the  plaintiff  was  entitled  to  get  the  document
executed by the defendant. It is  also  not  in  dispute  that  the  balance
amount of the agreed consideration was deposited in court simultaneously  to
the filing of the suit.

      Xx         xx          xx
12. The basic principle behind Section 16(c) read with Explanation  (ii)  is
that any person seeking benefit of  the  specific  performance  of  contract
must manifest that his conduct has  been  blemishless  throughout  entitling
him to the specific relief. The provision imposes a personal bar. The  Court
is to grant relief on the  basis  of  the  conduct  of  the  person  seeking
relief. If  the  pleadings  manifest  that  the  conduct  of  the  plaintiff
entitles him to get the relief on perusal of the plaint  he  should  not  be
denied the relief.”


7.       But in the present case, there is concurrent finding  of  fact  and
the same is evident from the record that the plaintiff  (present  appellant)
has failed to perform his part of contract, as such, in our  opinion,  above
case law is of little help  to  the  plaintiff/appellant,  and   the  courts
below have not erred  in  law  in  not  granting   the  relief  of  specific
performance of contract to the plaintiff in OS.No.37 of 1985.
8.    For the reasons as discussed above,  we  find  no  illegality  in  the
judgment and orders challenged before us. Accordingly, both the appeals  are
dismissed with costs.




     ….…………………………………………..J
     (SUDHANSU JYOTI MUKHOPADHAYA)



   ………………………………………………J
                           (PRAFULLA C. PANT)

NEW DELHI,
SEPTEMBER  8, 2014.
-----------------------
9

GOLD QUEST INTERNATIONAL PRIVATE LIMITED - Quashing of FIR on compromise - when can be considered as judicious - complaint as the company failed to give Numismatic Gold coin on payment of membership - single judge quashed all criminal cases on compromise - D.B. set aside the order - Apex court held that we are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under Prevention of Corruption Act, cases under Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded. After considering the facts and circumstances of the present case, we are of the view that learned Single Judge did not commit any error of law in quashing the FIR after not only the complainant and the appellant settled their money dispute but also the other alleged sufferers entered into an agreement with the appellant, and as such, they too settled their claims. we are of the opinion that the impugned order dated 7th March, 2008 passed by the Division Bench of the High Court in W.A.No.1178 of 2005 is liable to be set aside. Accordingly, the appeal is allowed, and the order dated 19th April, 2005 passed by the learned Single Judge in W.P. No. 26874 of 2003 stands restored.=CIVIL APPEAL NO.8546 OF 2014 (Arising out of S.L.P.(C) No.20066 of 2008) GOLD QUEST INTERNATIONAL PRIVATE LIMITED ……. APPELLANT VERSUS THE STATE OF TAMIL NADU & ORS. … .. RESPONDENTS = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41891

GOLD QUEST INTERNATIONAL PRIVATE LIMITED    - Quashing of FIR on compromise - when can be considered as judicious -  complaint as the company failed to give Numismatic Gold coin on payment of membership - single judge quashed all criminal cases on compromise - D.B. set aside the order - Apex court held that we  are  of  the  view  in  the  disputes  which  are  substantially matrimonial in nature, or the civil property disputes with criminal  facets, if the parties have entered into settlement, and it has  become  clear  that there are no chances of conviction, there is no illegality in  quashing  the proceedings  under  Section  482  Cr.P.C.  read  with  Article  226  of  the Constitution.  However, the  same  would  not  apply  where  the  nature  of offence is very serious like rape, murder,  robbery,  dacoity,  cases  under Prevention of Corruption Act, cases under Narcotic  Drugs  and  Psychotropic
Substances Act and other similar kind of offences  in  which  punishment  of life imprisonment or death can be awarded. After considering the  facts  and circumstances of the present case, we are of the view  that  learned  Single Judge did not commit any error of law in quashing the  FIR  after  not  only the complainant and the appellant settled their money dispute but  also  the other alleged sufferers entered into an agreement with  the  appellant,  and as such, they too settled their claims. we are of  the  opinion  that  the impugned order dated 7th March, 2008 passed by the  Division  Bench  of  the High Court in W.A.No.1178 of 2005 is liable to be  set  aside.  Accordingly, the appeal is allowed, and the order dated 19th April, 2005  passed  by  the learned Single Judge in W.P. No. 26874 of 2003 stands restored.=

whether the Division  Bench  of
High Court has erred in law in setting aside the  order  of  learned  Single
Judge quashing the First Information Report (for short, ‘FIR’) on the  basis
of the compromise and settlement between the complainant and the appellant.=
an  International
Numismatic Company which has operations in  over  sixty  countries.   It  is
pleaded that it conducts its business with  necessary  licence.
The  multi
level marketing through direct selling of products is being adopted  by  the
Company in the interest of the consumers by eliminating  the  middleman  and
rewarding the consumer by reducing the  prices.
The  appellant-company  has
over sixteen thousand members/ consumers in and around the city  of  Chennai
alone.
A complaint was made in the year 2003  by  Respondent  No.7   against
the appellant-company alleging  non-compliance  of  issuance  of  numismatic
gold coin on receipt of Rs.16,800/- from wife of  Respondent   No.7  as  per
the promise made by the appellant-company.
Some  other  customers  also  had
complaints on the basis of which Respondent No.4  registered  a  case  under
Section 420 of the Indian Penal Code read with Sections 4,  5  &  6  of  the
Prize Chits and  Money  Circulation  (Banning)  Act,  1978.
The  appellant-
company filed a writ petition being W.P.No.26784 of  2003  before  the  High
Court of Judicature at  Madras  praying  therein  that  the  FIR  registered
against it be quashed. Since all the  claimants  including  the  complainant
settled  the  dispute  with  the  appellant-company  and  entered  into   an
agreement, learned Single Judge of the High Court by its  order  dated  19th
April, 2005 quashed the FIR, and disposed of the  aforesaid  writ  petition.

However, the State-respondents challenged the said order  dated 19th  April,
2005 passed by the learned Single Judge whereby the FIR No.307 of  2003  was
quashed, before the Division Bench of the High  Court.
The  Division  Bench
allowed the writ appeal  being W.A.No.1178  of  2005  filed  by  the  State-
respondents and directed Respondent No.4 to investigate  the  crime.  Hence,
this appeal.=

In view of the principle laid down by this Court  in  the  aforesaid
cases,  we  are  of  the  view  in  the  disputes  which  are  substantially
matrimonial in nature, or the civil property disputes with criminal  facets,
if the parties have entered into settlement, and it has  become  clear  that
there are no chances of conviction, there is no illegality in  quashing  the
proceedings  under  Section  482  Cr.P.C.  read  with  Article  226  of  the
Constitution.  
However, the  same  would  not  apply  where  the  nature  of
offence is very serious like rape, murder,  robbery,  dacoity,  cases  under
Prevention of Corruption Act, cases under Narcotic  Drugs  and  Psychotropic
Substances Act and other similar kind of offences  in  which  punishment  of
life imprisonment or death can be awarded. 
After considering the  facts  and
circumstances of the present case, we are of the view  that  learned  Single
Judge did not commit any error of law in quashing the  FIR  after  not  only
the complainant and the appellant settled their money dispute but  also  the
other alleged sufferers entered into an agreement with  the  appellant,  and
as such, they too settled their claims.
9.    For the reasons as discussed above, we are of  the  opinion  that  the
impugned order dated 7th March, 2008 passed by the  Division  Bench  of  the
High Court in W.A.No.1178 of 2005 is liable to be  set  aside.
Accordingly,
the appeal is allowed, and the order dated 19th April, 2005  passed  by  the
learned Single Judge in W.P. No. 26874 of 2003 stands restored. No order  as
to costs.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41891
                                                  REPORTABLE


IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NO.8546   OF 2014
                 (Arising out of S.L.P.(C) No.20066 of 2008)




GOLD QUEST INTERNATIONAL
PRIVATE LIMITED                   …….  APPELLANT

                       VERSUS


THE STATE OF TAMIL
NADU & ORS.                          … .. RESPONDENTS




                       J U D G M E N T



PRAFULLA C.PANT,J.


1.   Leave granted.

2.  The question before us in this appeal is whether the Division  Bench  of
High Court has erred in law in setting aside the  order  of  learned  Single
Judge quashing the First Information Report (for short, ‘FIR’) on the  basis
of the compromise and settlement between the complainant and the appellant.
3.    Brief facts of the case are that the  appellant  is  an  International
Numismatic Company which has operations in  over  sixty  countries.   It  is
pleaded that it conducts its business with  necessary  licence.   The  multi
level marketing through direct selling of products is being adopted  by  the
Company in the interest of the consumers by eliminating  the  middleman  and
rewarding the consumer by reducing the  prices.  The  appellant-company  has
over sixteen thousand members/ consumers in and around the city  of  Chennai
alone. A complaint was made in the year 2003  by  Respondent  No.7   against
the appellant-company alleging  non-compliance  of  issuance  of  numismatic
gold coin on receipt of Rs.16,800/- from wife of  Respondent   No.7  as  per
the promise made by the appellant-company. Some  other  customers  also  had
complaints on the basis of which Respondent No.4  registered  a  case  under
Section 420 of the Indian Penal Code read with Sections 4,  5  &  6  of  the
Prize Chits and  Money  Circulation  (Banning)  Act,  1978.  The  appellant-
company filed a writ petition being W.P.No.26784 of  2003  before  the  High
Court of Judicature at  Madras  praying  therein  that  the  FIR  registered
against it be quashed. Since all the  claimants  including  the  complainant
settled  the  dispute  with  the  appellant-company  and  entered  into   an
agreement, learned Single Judge of the High Court by its  order  dated  19th
April, 2005 quashed the FIR, and disposed of the  aforesaid  writ  petition.
However, the State-respondents challenged the said order  dated 19th  April,
2005 passed by the learned Single Judge whereby the FIR No.307 of  2003  was
quashed, before the Division Bench of the High  Court.  The  Division  Bench
allowed the writ appeal  being W.A.No.1178  of  2005  filed  by  the  State-
respondents and directed Respondent No.4 to investigate  the  crime.  Hence,
this appeal.
4.    We have heard learned counsel for the parties, and perused the  papers
on record.
5.     The  main  ground  on  which  the  Division  Bench  appears  to  have
interfered with the order of the learned Single Judge is  that  out  of  172
claimants, there was no compromise from two  persons.   However,  there  was
sufficient evidence on record to suggest that the whereabouts of  those  two
persons were not known, nor have they ever challenged the order  of  learned
Single Judge. The Division Bench while accepting the arguments of the State-
Respondents have relied on a decision of this Court in Union  of  India  vs.
Bhajan Lal  (AIR 1992 SC 604 : 1992 Supp.(1) SCC  335).  The  said  judgment
appears to have been discussed by this Court in  B.  S.  Joshi  &  Ors.  vs.
State of Haryana & Anr. (2003) 4 SCC  675.  Relevant  paragraphs  of  B.  S.
Joshi’s case (supra) are reproduced  below:


      “ 2.   The question that falls for determination in the  instant  case
is about the ambit of the inherent powers of the High Courts  under  Section
482 of the Code of Criminal Procedure (the Code)   read  with  Articles  226
and 227 of the Constitution of India  to  quash  criminal  proceedings.  The
scope and ambit of power under Section 482 has been examined by  this  Court
in a catena of earlier decisions but in the present case  that  is  required
to be considered  in  relation  to  matrimonial  disputes.  The  matrimonial
disputes of the kind in the present case have been on considerable  increase
in recent times  resulting  in  filing  of  complaints  by  the  wife  under
Sections 498-A and 406 IPC not  only  against  the  husband  but  his  other
family members also. When such matters  are  resolved  either  by  the  wife
agreeing to rejoin the matrimonial home or mutual separation of husband  and
wife and also mutual settlement  of  other  pending  disputes  as  a  result
whereof both sides approach the High Court and jointly pray for quashing  of
the criminal proceedings or the first information report or complaint  filed
by the wife under Sections 498-A and 406 IPC, can the prayer be declined  on
the ground that since the offences are non-compoundable  under  Section  320
of the Code, therefore, it is not permissible for the  court  to  quash  the
criminal proceedings or FIR or complaint.


            Xx         xx         xx


4.  The High Court has, by the impugned  judgment,  dismissed  the  petition
filed by the appellants seeking quashing of the FIR for in view of the  High
Court the offences under Sections 498-A and  406  IPC  are  non-compoundable
and the inherent powers under Section 482 of the Code cannot be  invoked  to
bypass the mandatory provision of Section 320 of the  Code.  For  its  view,
the High Court has referred to and relied upon the decisions of  this  Court
in State of Haryana v. Bhajan Lal [1992 suppl.(1) SCC 335], Madhu Limaye  v.
State of Maharashtra [(1977) 4 SCC 551] and Surendra Nath Mohanty  v.  State
of Orissa [(1999) 5 SCC 238].


      Xx         xx         xx


14.  There  is  no  doubt  that  the  object  of  introducing  Chapter  XX-A
containing Section 498-A in the Indian Penal Code was to prevent torture  to
a woman by her husband or by relatives of her  husband.  Section  498-A  was
added with a view to punishing a husband and his  relatives  who  harass  or
torture the wife to coerce her or her relatives to satisfy unlawful  demands
of dowry. The hypertechnical view would be counterproductive  and would  act
against interests of women and against the object for which  this  provision
was added. There is every likelihood that non-exercise of inherent power  to
quash the proceedings to meet the ends of justice would prevent  women  from
settling earlier. That is not the object  of  Chapter  XX-A  of  the  Indian
Penal Code.


15.  In view of the above  discussion,  we  hold  that  the  High  Court  in
exercise of its inherent powers can quash criminal  proceedings  or  FIR  or
complaint and Section 320 of the Code does not limit or  affect  the  powers
under Section 482 of the Code.”

6.    Subsequent to the case of B.S. Joshi (supra) in  Nikhil  Merchant  vs.
Central Bureau of Investigation & Anr.     (2008) 9 SCC 677, this Court  has
made the following observations in paragraphs 30 and 31   which  are  quoted
below:

“30.  In the instant case, the disputes between the  Company  and  the  Bank
have been set at rest on the basis of the  compromise  arrived  at  by  them
whereunder the dues of the Bank have been cleared  and  the  Bank  does  not
appear to have  any  further  claim  against  the  Company.  What,  however,
remains is the fact  that  certain  documents  were  alleged  to  have  been
created by the appellant herein in  order  to  avail  of  credit  facilities
beyond the limit to which the Company was  entitled.  The  dispute  involved
herein has overtones of a civil dispute with certain  criminal  facets.  The
question which is required to be answered in this case is whether the  power
which independently lies with this Court to quash the  criminal  proceedings
pursuant to the compromise arrived at, should at all be exercised?

31. On an overall view of the facts as indicated hereinabove and keeping  in
mind the decision of this Court in B.S. Joshi case [(2003) 4 SCC 675],   and
the compromise arrived at between the Company and the Bank  as  also  Clause
11 of the consent terms filed  in  the  suit  filed  by  the  Bank,  we  are
satisfied that this is a fit case where technicality should not  be  allowed
to stand in the way in the quashing of the criminal proceedings,  since,  in
our view, the continuance of  the  same  after  the  compromise  arrived  at
between the parties would be a futile exercise.”


7.      In Gian Singh vs.  State  of  Punjab  &  Anr.  (2012)  10  SCC  303,
judgments in B.S. Joshi (supra) and Nikhil Merchant (supra) were  considered
 by a three-Judge Bench of this Court and it has found that the  view  taken
in aforesaid two cases by this Court is correct. Relevant paragraphs of  the
judgment in Gian Singh (supra) read as follows:

“ 57.   Quashing of  offence  or  criminal  proceedings  on  the  ground  of
settlement between  an  offender  and  victim  is  not  the  same  thing  as
compounding  of  offence.  They  are  different  and  not   interchangeable.
Strictly speaking, the power of compounding of offences  given  to  a  court
 under
Section  320  is  materially  different  from  the  quashing   of   criminal
proceedings by the High Court in exercise of its inherent  jurisdiction.  In
compounding of offences, power of a criminal court is circumscribed  by  the
provisions contained in Section 320 and  the  court  is  guided  solely  and
squarely thereby while, on the other hand, the formation of opinion  by  the
High Court for  quashing  a  criminal  offence  or  criminal  proceeding  or
criminal complaint is guided by the material on record  as  to  whether  the
ends of justice  would justify such exercise of power although the  ultimate
consequence may be acquittal or dismissal of indictment.


            Xx         xx         xx



59.  B.S. Joshi [(2003) 4 SCC 675], Nikhil  Merchant  [(2008)  9  SCC  677],
Manoj Sharma [(2008) 16 SCC 1 and Shiji [(2011) 10 SCC  705]  do  illustrate
the principle that the High Court may quash  criminal proceedings or FIR  or
complaint in exercise  of its inherent power  under Section 482 of the  Code
and Section 320 does not limit or affect   the  powers  of  the  High  Court
under Section 482. Can it be said that by quashing  criminal proceedings  in
B.S. Joshi,  Nikhil  Merchant,  Manoj  Sharma   and  Shiji  this  Court  has
compounded the non-compoundable offences indirectly ? We do  not  think  so.
There does exist the distinction between compounding of  an  offence   under
Section 320 and quashing of a criminal case by the High  Court  in  exercise
of inherent power under  Section  482.  The  two  powers  are  distinct  and
different although the ultimate consequence may be the same  viz.  acquittal
of the accused or dismissal of indictment.


                        Xx  xx         xx



            61.   The position that emerges from the  above  discussion  can
be summarized thus: the power of the  High  Court  in  quashing  a  criminal
proceeding or FIR or complaint in exercise of its inherent  jurisdiction  is
distinct and different  from  the  power  given  to  a  criminal  court  for
compounding the offences under Section 320 of the Code.  Inherent  power  is
of wide plenitude with no statutory limitation but it has  to  be  exercised
in accord with the guideline engrafted in such power viz.:(i) to secure  the
ends of justice, or (ii) to prevent abuse  of the process of any  court.  In
what cases power to quash  the criminal proceeding or complaint or  FIR  may
be exercised where the offender and the victim have  settled  their  dispute
would depend on the facts and circumstances of each  case  and  no  category
can be prescribed. However, before exercise of such power,  the  High  Court
must have due regard to the nature and gravity of  the  crime.  Heinous  and
serious offences  of  mental  depravity  or  offences  like   murder,  rape,
dacoity, etc.  cannot  be  fittingly  quashed  even  though  the  victim  or
victim’s family and the offender have settled  the  dispute.  Such  offences
are not private in nature and have a serious impact on  society.  Similarly,
any compromise between the victim  and  the  offender  in  relation  to  the
offences under special statutes like the Prevention  of  Corruption  Act  or
the offences committed by public servants while working  in  that  capacity,
etc.; cannot  provide  for  any  basis  for  quashing  criminal  proceedings
involving such offences. But the criminal cases  having  overwhelmingly  and
predominatingly   civil  flavour  stand  on  a  different  footing  for  the
purposes of quashing, particularly the  offences  arising  from  commercial,
financial, mercantile, civil, partnership or such like transactions  or  the
offences arising out of matrimony relating to dowry,  etc.   or  the  family
disputes where the wrong is basically private or personal in nature and  the
parties have resolved their entire dispute. In this category of  cases,  the
High Court may quash  the criminal proceedings if in its  view,  because  of
the compromise  between the offender and  the  victim,  the  possibility  of
conviction is remote and bleak and continuation of the criminal  case  would
put the accused to great oppression  and  prejudice  and  extreme  injustice
would be caused to him by not quashing the criminal case  despite  full  and
complete settlement and compromise with the victim.  In  other  words,   the
High Court must consider whether it would  be  unfair  or  contrary  to  the
interest  of  justice  to  continue   with  the  criminal   proceeding    or
continuation of  the  criminal  proceeding  would  tantamount  to  abuse  of
process of law despite settlement  and compromise  between  the  victim  and
the wrongdoer and whether  to secure the ends of justice, it is  appropriate
that the criminal case is put to an end and  if  the  answer  to  the  above
question(s) is in the affirmative, the High Court shall be well  within  its
jurisdiction to quash the criminal proceedings.”



8.      In view of the principle laid down by this Court  in  the  aforesaid
cases,  we  are  of  the  view  in  the  disputes  which  are  substantially
matrimonial in nature, or the civil property disputes with criminal  facets,
if the parties have entered into settlement, and it has  become  clear  that
there are no chances of conviction, there is no illegality in  quashing  the
proceedings  under  Section  482  Cr.P.C.  read  with  Article  226  of  the
Constitution.  However, the  same  would  not  apply  where  the  nature  of
offence is very serious like rape, murder,  robbery,  dacoity,  cases  under
Prevention of Corruption Act, cases under Narcotic  Drugs  and  Psychotropic
Substances Act and other similar kind of offences  in  which  punishment  of
life imprisonment or death can be awarded. After considering the  facts  and
circumstances of the present case, we are of the view  that  learned  Single
Judge did not commit any error of law in quashing the  FIR  after  not  only
the complainant and the appellant settled their money dispute but  also  the
other alleged sufferers entered into an agreement with  the  appellant,  and
as such, they too settled their claims.
9.    For the reasons as discussed above, we are of  the  opinion  that  the
impugned order dated 7th March, 2008 passed by the  Division  Bench  of  the
High Court in W.A.No.1178 of 2005 is liable to be  set  aside.  Accordingly,
the appeal is allowed, and the order dated 19th April, 2005  passed  by  the
learned Single Judge in W.P. No. 26874 of 2003 stands restored. No order  as
to costs.



            .………………………………………..J.                          (SUDHANSU JYOTI
MUKHOPADHAYA)



…….………………………………………J
                                   (PRAFULLA C. PANT)


      NEW DELHI,
      SEPTEMBER 8, 2014.

Proof will - No suspicious clouds - Apex court held that mere exclusion of sons does not invalid the will - active participation of beneficiary in getting the attestator and in execution & registration does not invalid the will - mere no filing of complaint about the lose of original will does not invalid will - English will - practice to read over and explained by Sub- Reg. removed all doubts over the will in English language = CIVIL APPEAL NO. 9282 OF 2010 LEELA RAJAGOPAL & ORS. … APPELLANT (S) VERSUS KAMALA MENON COCHARAN & ORS. … RESPONDENT (S) =2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41890

       Proof will - No suspicious clouds - Apex court confirmed the judgment of High court and held that mere exclusion of sons does not invalid the will - active participation of beneficiary in getting the attestator and in execution & registration does not invalid the will - mere no filing of complaint about the lose of original will does not invalid will - English will - practice to read over and explained by Sub- Reg. removed all doubts over the will in English language =

The  said  question  is
with regard to the validity and legality of a Will dated 11.1.1982  executed
by one K.P. Janaki  Amma,  the  mother  of  the  appellants  and  the  first
respondent.  
The  learned  Trial  Judge  by  his  order  dated   23.01.2001
dismissed the probate proceedings instituted by the first respondent  (later
converted into a Suit being T.O.S. No. 16  of  1994)  by  holding  that  the
execution of the Will dated 11.1.1982 is surrounded by a host of  suspicious
circumstances rendering the same legally unacceptable.
The  aforesaid  view
of the learned Trial Judge of the High Court having been overturned  by  the
Division Bench of the High Court by impugned  order  dated  18.08.2009,  the
present appeals have been filed.=

A Will may have  certain  features  and  may  have  been  executed  in
certain circumstances which may  appear  to  be  somewhat  unnatural.  
Such
unusual  features  appearing  in  a  Will  or  the  unnatural  circumstances
surrounding its execution will definitely justify a  close  scrutiny  before
the same can be accepted.
 It is the overall assessment of the Court on  the
basis of such scrutiny; the cumulative effect of the  unusual  features  and
circumstances  which  would  weigh  with  the  Court  in  the  determination
required to be made by it.
The judicial verdict, in the last  resort,  will
be on the  basis  of  a  consideration  of  all  the  unusual  features  and
suspicious circumstances put together and not on the impact  of  any  single
feature that may be found in a Will or  a  singular  circumstance  that  may
appear from the process leading to its execution or registration.
This,  is
the essence of the  repeated  pronouncements  made  by  this  Court  on  the
subject including the decisions referred to and relied upon before us.

11.   In the present case, a close reading of the Will indicates  its  clear
language, and its unambiguous purport and effect.
The mind of the  testator
is clearly discernible  and  the  reasons  for  exclusion  of  the  sons  is
apparent from the Will  itself.   
Insofar  as  the  place  of  execution  is
concerned, the inconsistency appearing in the verification  filed  alongwith
the application for probate by PW-3  and  the  oral  evidence  of  the  said
witness tendered in Court is capable of being understood  in  the  light  of
the fact that  the  verification  is  in  a  standard  form  (Form  No.  55)
prescribed by the Madras  High  Court  on  the  Original  Side,  as  already
noticed.  
Besides, in the facts of the present  case  the  participation  of
the first respondent in the execution and registration of  the  Will  cannot
be said to be a circumstance that would warrant an adverse  conclusion.  
The
conduct of the first respondent in summoning her  friend  (PW-3)  to  be  an
attesting witness and in taking the  testator  to  the  office  of  the  Sub
Registrar should, again, not warrant any adverse conclusion. 
It also  cannot
escape notice that the Will dated 11.1.1982 is identical with  the  contents
of the earlier Will dated 28.12.1981.   
Insofar  as  the  execution  of  the
Will  dated  28.12.1981  and  its  registration  is  concerned   no   active
participation has been attributed to the first respondent.   
The  change  of
the attesting witnesses and the non-examination of  Seetha  Padmanabhan  who
had  attested  the  second  Will  dated  11.1.1982  has  been   sufficiently
explained.

12.   The lack of knowledge of English even if  can  be  attributed  to  the
testator would not fundamentally alter  the  situation  inasmuch  as  before
registration of the Will the contents thereof  can  be  understood  to  have
been  explained  to  the  testator  or  ascertained  from  her  by  the  Sub
Registrar, PW-4, who had deposed that such a practice  is  normally  adhered
to.
The non-production of the original Will and reliance on  the  certified
copy thereof is a circumstance which has been reasonably  explained  by  the
first respondent (plaintiff).
The original Will,  after  its  execution  on
11.1.1982, was in the custody of the testator and it is only on the  day  or
her death i.e. 27.4.1991 that the first respondent  (plaintiff)  could  find
that the Will was missing from the envelope marked ‘KPP Will’.  
The  stand
of the plaintiff that the original Will was lost while  in  the  custody  of
her mother and her knowledge of such loss on the day of her  mother’s  death
cannot be disbelieved merely because no report in  this  regard  was  lodged
before the police.
13.   All the unusual and allegedly suspicious circumstances  being  capable
of being understood in the manner indicated above, we cannot find any  fault
with the conclusions reached by the High Court while reversing the  judgment
of the learned Trial Court.
14.   Before parting we would like to observe that the  very  fact  that  an
appeal to this Court can be lodged only  upon  grant  of  special  leave  to
appeal would indicate the highly circumscribed nature  of  the  jurisdiction
of this Court.  In contrast to a statutory appeal,  an  appeal  lodged  upon
grant of special leave pursuant to a provision  of  the  Constitution  would
call for highly economic exercise of the power which  though wide to  strike
at injustice wherever it occurs must display  highly  judicious  application
thereof.  Determination of facts made by the High Court sitting as  a  first
appellate court or even while concurring as a second appellate  court  would
not be reopened unless the same give rise to questions of law  that  require
a serious debate or discloses wholly unacceptable conclusions of fact  which
plainly demonstrate a travesty of justice. Appreciation  or  re-appreciation
 of evidence must come to a halt at some stage of the  judicial  proceedings
and cannot percolate to the  constitutional  court  exercising  jurisdiction
under Article 136.

15.    We,  accordingly,  dismiss  these  appeals  affirm  the  order  dated
18.08.2009 passed by the Division Bench of the High Court in  Original  Side
Appeal No. 185 of 2001.  However, in the  facts  and  circumstances  of  the
case, we make no order as to cost.   
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41890
                      REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 9282 OF 2010


LEELA RAJAGOPAL & ORS.                     … APPELLANT (S)

                                   VERSUS

KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)

                                    WITH

                        CIVIL APPEAL NO. 9286 OF 2010
                        CIVIL APPEAL NO. 7004 OF 2012


                               J U D G M E N T



RANJAN GOGOI, J.

1.     All the three appeals being directed against the common judgment  and
order of the High Court dated 18.08.2009  were  heard  analogously  and  are
being disposed of by this order.

2.    In the present appeals, which challenge a judgment of reversal  passed
by a Division Bench of the High Court of Madras, determination  of  what  is
essentially  a  question  of  fact  confronts  this  Court  exercising   its
jurisdiction under Article 136 of the Constitution.  The  said  question  is
with regard to the validity and legality of a Will dated 11.1.1982  executed
by one K.P. Janaki  Amma,  the  mother  of  the  appellants  and  the  first
respondent.   The  learned  Trial  Judge  by  his  order  dated   23.01.2001
dismissed the probate proceedings instituted by the first respondent  (later
converted into a Suit being T.O.S. No. 16  of  1994)  by  holding  that  the
execution of the Will dated 11.1.1982 is surrounded by a host of  suspicious
circumstances rendering the same legally unacceptable.  The  aforesaid  view
of the learned Trial Judge of the High Court having been overturned  by  the
Division Bench of the High Court by impugned  order  dated  18.08.2009,  the
present appeals have been filed.

3.    We have heard Mr. Krishnan Venugopal  and  Mr.  Dhruv  Mehta,  learned
senior counsels as well as Mr. T.  Harish  Kumar  learned  counsel  for  the
appellants and Mr. Vijay Hansaria,  learned  senior  counsel  appearing  for
respondent No. 1.

4.    Testator  Late  Janaki  Amma  had  initially  executed  a  Will  dated
28.12.1981 bequeathing house property bearing No. 8, Malony Road, T.  Nagar,
Madras-17 in favour of the first respondent Kamala  Menon  Cochran  and  her
grand-daughter Geetha (daughter of her  predeceased  daughter  Leela).   The
said Will, inter alia, contained a recital that the  testator  had  4  sons.
In the Will dated 28.12.1981 the testator had  acknowledged  that  her  sons
are all well settled in life and had properties  purchased  in  their  names
during the life time of their father.  The testator had further stated  that
she had suffered extreme bereavement on the  death  of  her  daughter  Leela
which occurred on 02.02.1975 and therefore out of the  deep  attachment  for
her grand-daughter, Geetha, and also as  her  second  daughter  K.P.  Kamala
Menon i.e. respondent No. 1 aged 46 years who is a Principal  in  a  College
and a spinster she is bequeathing the house property in favour of her grand-
daughter and her daughter to the exclusion  of  her  sons.   The  said  Will
dated  28.12.1981  was  superseded/revoked  by  a  subsequent   Will   dated
11.1.1982 which contained similar  recitals  as  in  the  first  Will  dated
28.12.1981 except  for  the  fact  that  instead  of  4  sons  the  testator
mentioned that she had 5 living sons.  After the death of Janaki Amma  which
occurred on 27.04.1991  the  respondent  No.  1  had  instituted  a  probate
proceedings which was later converted into a suit, as the Will was  disputed
by the sons of the deceased.

5.    The appellants who were the defendants in  the  suit  and  respondents
before the High Court had contested the legal validity  of  the  Will  dated
11.1.1982 by  asserting  that  the  same  was  not  a  valid  instrument  of
conveyance executed on the free volition of  the  testator;  rather  it  was
dictated at the instance of the first respondent-daughter who had  exercised
undue  influence  and  coercion  on  the  testator.   To  substantiate   the
contentions advanced, the contesting defendants had  led  evidence  to  show
that the Will was executed in  circumstances  which  give  rise  to  serious
doubts, with regard to its voluntary execution by the testator.

6.    The learned Trial Court  on  a  consideration  of  the  cases  of  the
parties and the evidence and materials adduced took note  of  the  following
circumstances surrounding the execution of the Will :

(i)   No specific reason was disclosed as to why the sons i.e.  the  present
appellants had been excluded from the Will;

(ii)  At the time of execution of the Will the respondent  No.  1  had  come
down from Tirupathi where she was working as a college teacher/Principal  to
Madras and was staying with the mother i.e. the testator;

(iii) Only a fortnight  earlier  to  the  execution  of  the  Will  i.e.  on
10.12.1981 the testator had written a letter (Ex. P8) to  one  of  her  sons
Thangamani (Predecessor-in-interest of appellants in C.A. No. 9282 of  2010)
expressing her intention to partition the  house  property,  which  was  the
subject matter of Will, equally among all the children;

(iv)  Non-production of the original copy of the Will;

(v)   The discrepancy in the evidence of  the  witnesses  of  the  plaintiff
with regard to the place of execution of the Will; and

(vi)  The prominent part played by the plaintiff (respondent No.  1  herein)
in the registration of the Will.

      These circumstances,  according  to  the  learned  Trial  Court,  were
suspicious enough to justify a conclusion that the  Will  ought  not  to  be
accepted as a valid instrument executed on the free  will  and  volition  of
the testator.
7.    In appeal, the  High  Court,  on  consideration  of  the  grounds  and
reasons which had persuaded the learned Trial Court to take the above  view,
thought it proper to disagree with the same and  reverse  the  consequential
findings.  It may be noticed, at this stage,  that  in  its  very  elaborate
order the High Court had gone  into  each  of  the  circumstances  mentioned
above; the evidence in support thereof as adduced by  the  parties  and  the
arguments advanced before  reversing  the  findings  of  the  learned  Trial
Court.
8.    Learned counsels for the appellants, in all the three  appeals  before
us, submitted that between 11.1.1982 i.e. alleged date of execution  of  the
Will and 27.4.1991 i.e. date of death of  the  testator,  the  beneficiaries
under the Will had not informed anybody about  the  existence  of  the  Will
which according to the learned  counsel  is  unnatural.   Pointing  out  the
evidence with regard to the place of execution of the Will, learned  counsel
have contended that there  is  an  apparent  inconsistency  in  this  regard
inasmuch as while  in  the  verification  submitted  alongwith  the  probate
petition as required under Sections 281 and 282  of  the  Indian  Succession
Act, 1925 PW-3 had claimed that the Will was executed in the  house  of  the
testator, in her evidence, PW-3, had stated that the same  was  executed  in
the office of the Sub-Registrar.  However, PW-4, the Sub-Registrar  who  was
examined did not categorically depose about the place  where  the  Will  was
executed.   Reference  has  been  made  by  the  learned  counsels  for  the
appellants to other suspicious  circumstances,  enumerated  hereinabove,  to
contend that the same are sufficient and adequate to  justify  rejection  of
the Will in question.  Specifically, it was argued that no  explanation  has
been offered for non-production of the original Will and the High Court  has
accepted the story of loss of the Will on the mere statement  of  the  first
respondent.   On the said basis it is contended that the  first  respondent,
as the Plaintiff, could not have led secondary evidence in  support  of  the
Will in the absence of clear  and  convincing  proof  of  the  loss  of  the
original Will.  Bringing in a different set of attesting witnesses in  place
of the witnesses who had attested the execution  of  the  first  Will  dated
28.12.1981; the non-examination of the attesting witness Seetha  Padmanabhan
and the examination of the second witness (PW-3)  Jaya  Lakshmi  who  was  a
colleague of  the  plaintiff  are  other  circumstances  which  the  learned
counsel for the appellants contends to be highly  suspicious.   The  absence
of any evidence to  show  the  lack  of  cordial  relationship  between  the
testator and her sons and the fact that defendant No.  4  i.e.  one  of  the
sons was actually looking after the mother has also been  stressed  upon  to
point out that there was no reason to exclude the sons under the  Will.   In
fact, learned counsels for the appellants have pointed  out  that  PW-2  and
PW-3 had clearly and categorically stated that the relationship between  the
testator and her sons was good.  It is further argued that the letter  dated
10.12.1981 (Ex. P8) of the  mother  to  one  of  the  sons,  properly  read,
indicates a very cordial relationship  and  the  purport  thereof  has  been
thoroughly misinterpreted  by  the  High  Court  to  come  to  the  impugned
findings and conclusions.  The lack of knowledge of English on the  part  of
the testator has also been cited as  another  circumstance  to  justify  its
rejection.  Reliance has been placed on behalf  of  the  appellants  on  the
decision of this Court in H. Venkatachala Iyengar  Vs. B.N. Thimmajamma  and
Others[1]  as well as on a more recent pronouncement in  Bharpur  Singh  and
Others  Vs. Shamsher Singh[2] to contend that active  participation  of  the
first respondent in execution and registration  of  the  Will  ought  to  be
viewed by us  as  raising  serious  doubts  with  regard  to  the  voluntary
execution of the Will by the testator.   Two other decisions of  this  Court
in Rani Pnrnima Debi and  Another   Vs.  Kumar  Khagendra  Narayan  Deb  and
Another[3] and Apoline D’souza  Vs. John D’souza[4] have  also  been  placed
to contend that the absence of any evidence to show that the Will  was  read
over and explained to the testator, in view of  her  lack  of  knowledge  of
English, would be crucial for determination of the authenticity of the  Will
in question.
9.    Opposing the arguments advanced on  behalf  of  the  appellants,  Shri
Vijay Hansaria, learned senior counsel appearing for respondent  No.  1  has
argued that the acceptance  or  rejection  of  the  Will,  in  the  ultimate
analysis would depend on the satisfaction of the judicial conscience of  the
Court with regard to its due execution.  Shri Hansaria  has  submitted  that
no single circumstance would be determinative of the question and it is  the
cumulative effect thereof which would be vital to the adjudication  required
to be made by the Court.  The mere participation of the first respondent  in
the execution and registration of the Will; her presence in  Madras  at  the
time of execution of the Will will in no way affect  the  validity  thereof,
it is contended.  Insofar as the discrepancy in the place  of  execution  of
the Will is concerned, Shri Hansaria has pointed out that  the  verification
filed alongwith the  application  for  probate  was  in  the  standard  form
prescribed by the Original Side Rules of the High  Court  of  Judicature  at
Madras (Form No. 55 which mentions the place of execution as  the  House  of
…….). Insofar as the loss of the original Will is concerned it is  submitted
that the same was in custody of the testator and was  found  to  be  missing
only after her death.   It  is  in  these  circumstances  that  the  probate
proceedings were instituted on the basis of the certified copy of  the  Will
which is authorised under the  provisions  of  the  Indian  Succession  Act.
Insofar as the issue with regard to knowledge of English of the testator  is
concerned, apart from pointing out the relevant part of the evidence of  the
witnesses to show that the testator could read and  understand  English,  it
is argued that PW-4  (Sub-Registrar)  had  deposed  that  in  all  cases  of
registration the testator is asked whether he/she is aware of  the  contents
of the Will.  Shri  Hansaria  has  cited  the  decision  of  this  Court  in
Pentakota  Satyanarayana  and  Others   Vs.   Pentakota   Seetharatnam   and
Others[5] to contend that mere active participation in the  registration  of
the Will by itself would not be a vitiating factor.  Reliance has also  been
placed on two decisions of this Court in Mahesh Kumar (Dead)  by  Lrs.   Vs.
Vinod Kumar and Others[6]   and Ved Mitra Verma  Vs. Dharam Deo Verma[7]  to
show  that  mere  exclusion  of  the  other  heirs  will  not  vitiate   the
disposition made by a Will.

10.   A Will may have  certain  features  and  may  have  been  executed  in
certain circumstances which may  appear  to  be  somewhat  unnatural.   Such
unusual  features  appearing  in  a  Will  or  the  unnatural  circumstances
surrounding its execution will definitely justify a  close  scrutiny  before
the same can be accepted.  It is the overall assessment of the Court on  the
basis of such scrutiny; the cumulative effect of the  unusual  features  and
circumstances  which  would  weigh  with  the  Court  in  the  determination
required to be made by it.  The judicial verdict, in the last  resort,  will
be on the  basis  of  a  consideration  of  all  the  unusual  features  and
suspicious circumstances put together and not on the impact  of  any  single
feature that may be found in a Will or  a  singular  circumstance  that  may
appear from the process leading to its execution or registration.  This,  is
the essence of the  repeated  pronouncements  made  by  this  Court  on  the
subject including the decisions referred to and relied upon before us.

11.   In the present case, a close reading of the Will indicates  its  clear
language, and its unambiguous purport and effect.  The mind of the  testator
is clearly discernible  and  the  reasons  for  exclusion  of  the  sons  is
apparent from the Will  itself.   Insofar  as  the  place  of  execution  is
concerned, the inconsistency appearing in the verification  filed  alongwith
the application for probate by PW-3  and  the  oral  evidence  of  the  said
witness tendered in Court is capable of being understood  in  the  light  of
the fact that  the  verification  is  in  a  standard  form  (Form  No.  55)
prescribed by the Madras  High  Court  on  the  Original  Side,  as  already
noticed.  Besides, in the facts of the present  case  the  participation  of
the first respondent in the execution and registration of  the  Will  cannot
be said to be a circumstance that would warrant an adverse  conclusion.  The
conduct of the first respondent in summoning her  friend  (PW-3)  to  be  an
attesting witness and in taking the  testator  to  the  office  of  the  Sub
Registrar should, again, not warrant any adverse conclusion. It also  cannot
escape notice that the Will dated 11.1.1982 is identical with  the  contents
of the earlier Will dated 28.12.1981.   Insofar  as  the  execution  of  the
Will  dated  28.12.1981  and  its  registration  is  concerned   no   active
participation has been attributed to the first respondent.   The  change  of
the attesting witnesses and the non-examination of  Seetha  Padmanabhan  who
had  attested  the  second  Will  dated  11.1.1982  has  been   sufficiently
explained.

12.   The lack of knowledge of English even if  can  be  attributed  to  the
testator would not fundamentally alter  the  situation  inasmuch  as  before
registration of the Will the contents thereof  can  be  understood  to  have
been  explained  to  the  testator  or  ascertained  from  her  by  the  Sub
Registrar, PW-4, who had deposed that such a practice  is  normally  adhered
to.  The non-production of the original Will and reliance on  the  certified
copy thereof is a circumstance which has been reasonably  explained  by  the
first respondent (plaintiff).  The original Will,  after  its  execution  on
11.1.1982, was in the custody of the testator and it is only on the  day  or
her death i.e. 27.4.1991 that the first respondent  (plaintiff)  could  find
that the Will was missing from the envelope marked ‘KPP Will’.    The  stand
of the plaintiff that the original Will was lost while  in  the  custody  of
her mother and her knowledge of such loss on the day of her  mother’s  death
cannot be disbelieved merely because no report in  this  regard  was  lodged
before the police.
13.   All the unusual and allegedly suspicious circumstances  being  capable
of being understood in the manner indicated above, we cannot find any  fault
with the conclusions reached by the High Court while reversing the  judgment
of the learned Trial Court.
14.   Before parting we would like to observe that the  very  fact  that  an
appeal to this Court can be lodged only  upon  grant  of  special  leave  to
appeal would indicate the highly circumscribed nature  of  the  jurisdiction
of this Court.  In contrast to a statutory appeal,  an  appeal  lodged  upon
grant of special leave pursuant to a provision  of  the  Constitution  would
call for highly economic exercise of the power which  though wide to  strike
at injustice wherever it occurs must display  highly  judicious  application
thereof.  Determination of facts made by the High Court sitting as  a  first
appellate court or even while concurring as a second appellate  court  would
not be reopened unless the same give rise to questions of law  that  require
a serious debate or discloses wholly unacceptable conclusions of fact  which
plainly demonstrate a travesty of justice. Appreciation  or  re-appreciation
 of evidence must come to a halt at some stage of the  judicial  proceedings
and cannot percolate to the  constitutional  court  exercising  jurisdiction
under Article 136.

15.    We,  accordingly,  dismiss  these  appeals  affirm  the  order  dated
18.08.2009 passed by the Division Bench of the High Court in  Original  Side
Appeal No. 185 of 2001.  However, in the  facts  and  circumstances  of  the
case, we make no order as to cost.
                         ...………….…………………J.
                                              [RANJAN GOGOI]


                                                         ..….…....……………………J.
                                              [R.K. AGRAWAL]


NEW DELHI,
SEPTEMBER 08, 2014.


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[1]    1959 Supp (1) SCR 426
[2]    2009(3) SCC 687
[3]    (1962) 3 SCR 195
[4]    2007 (7) SCC 225
[5]    2005 (8) SCC 67
[6]    2012 (4) SCC 387
[7]    2014 (9) SCALE 219

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