SHIVAKUMAR & ORS. versus SHARANABASAPPA & ORS.

[2020] 6 S.C.R. 666

[2020] 6 S.C.R.

SHIVAKUMAR & ORS.

SHARANABASAPPA & ORS.

(Civil Appeal No. 6076 of 2009)

APRIL 24, 2020

[A. M. KHANWILKAR, HEMANT GUPTA ANDDINESH MAHESHWARI, JJ.]

Will – Genuineness of – Plaintiff-Appellants filed civil suitfor declaration and injunction that they had acquired ownershipCrights in the suit properties on the basis of Will dated 20.05.1991executed by one ‘S’ and that the Trust created by defendants inrelation to the suit properties was illegal and void – The defendantsquestioned the genuineness of the alleged Will – The Trial Courtdecided the principal issue related to the Will in favour of theDplaintiffs – However, the High Court reversed the decision of TrialCourt on the principal issue relating to the genuineness of the Will– On appeal, held: In the instant case, there were unnatural andunusual features in the document/Will in question – Different sheetsof paper had been used in preparation of Will; placement of thesignatures of the testator was at least at two places beyond normalEdistance from the last typed matter; in making of three signatures,at least two different pens were used; the front facing pages number1,3 and 5 carried the signatures of the testator, the backside pages,i.e. pages 2 and 4 were unsigned – Further, several blank spaceswere found in relation to the particulars of the properties and evenFsome of the properties were not correctly described – There wasrecital in the document of past event (about vacating of the shopby tenant) in the manner that such event shall happen in future – Inthe opening passage of the document, the recital was to the effectthat the testator was making Will because so many accidents dohappen – The fact remain that testator died in an accident onG20.05.1994 and Will was made on 20.05.1991 – That apart, theplaintiffs never took steps to get the statement of the person, whowas otherwise referred to by all the material witnesses as being theperson before whom the document was allegedly opened – Theunexplained, unusual and abnormal features pertaining to theHdocument only lead to logical deduction that the document in

question was prepared after the demise of the testator ‘S’ with useof blank signed papers that came in possession of the propoundersand their associates – The High Court was right in reversing thedecision of the Trial Court and in holding that the contested Willwas not genuine document.

Code of Civil Procedure, 1908 – Or.XLI, rr.23, 23A, 24 and25 – Order of remand by the Appellate Court – Held: conjointreading of Rules 23, 23A and 24 of Or.XLI brings forth the scopeas also contours of the powers of remand that when the availableevidence is sufficient to dispose of the matter, the proper course foran Appellate Court is to follow the mandate of r.24 of Or.XLI CPCand to determine the suit finally – It is only in such cases where thedecree in challenge is reversed in appeal and re-trial is considerednecessary that the Appellate Court shall adopt the course ofremanding case.

Dismissing the appeal, the Court

HELD: 1. The High Court felt dissatisfied with thedocument itself and found no explanation on record aboutnumerous unnatural circumstances dilated upon and discussedby it in some of the passages extracted hereinbefore. Havingexamined the material placed on record, in view of this Court,the observations and findings of the High Court remainunexceptionable. [Para 14][706-G]

2. At least four unusual features of the document in questionare evident on the face of the record. To recapitulate, the disturbingunusual features of the document in question are that: (i) it istypewritten on 3 different sheets of paper; (ii) the placement ofsignatures of the testator is not of uniformity and excessive spaceis seen between the typewritten contents and the signatures onpage number 1 and page number 5; (iii) different pens have beenused for signatures on different pages with ink pen having beenused for first and third signatures (on page number 1 and pagenumber 5) and ballpoint pen having been used for the secondsignature (on page number 3); and (iv) all the typewritten pagesdo not carry the signatures of the testator, with there being nosignature on page number 2 and page number 4. It does notrequire any great deal of elaboration that in the ordinary, normal

Aand usual course, such typewritten document is expected to beon the sheets of paper drawn from the same stack; there wouldbe reasonable uniformity in placement of the signatures runningthrough the document and every signature would be placedalongside or at reasonable distance from the contents; singlepen or instrument would be used for signing at all places; and,Bordinarily, maker of the Will would not leave such ambiguity inexpression of his intention as would arise by his signing 3 pagesand not signing 2 other pages of the same document. In fact, inthe normal and ordinary course of dealing, the maker of Will isleast expected to leave any page of the document unsigned.CAlthough existence of some such unusual features (as noticedabove) cannot be ruled out during the course of typing and signingof the document but when all such unusual features combinetogether, the document becomes too vulnerable and cannot bereadily accepted as genuine document. [Para 15.5.][709-G-H;710-A-E]D

3. The document in question carries several such featuresof unusualness which travel into the realm of abnormalities. Thematter does not rest with such abnormalities only. These abnormalfeatures get confounded with other unusual features available inthe contents of this document. Indisputably, several blank spacesEare found in relation to the particulars of the properties and evensome of the properties are not correctly described. Yet further,the dates mentioned in the document with reference to HindiCalendar and English Calendar do not match. Yet another curiousfeature is the recital in the document of past event (about

Fvacating of the shop by the tenant in the year 1990) in the mannerthat such event shall happen in future. Therefore, theabnormalities relating to paper, pen and signature get magnifiedwith blank spaces in the document as also with incorrect andinexplicable recitals. [Para 16][710-F-H; 711-D]

G4. The problems relating to the probative value of thedocument Ex. P.4 do not end with the aforementioned abnormalfeatures and curious factors. close examination of this documenttakes us from abnormalities to mysteries too. In the openingpassage of this document, the recital is to the effect that the

testator was making the Will because so many accidents dohappen. The fact remains that the testator and his wife both diedin the car accident on 20.05.1994 but, it would require travellinginto an entirely mystical region to accept that while making theWill on 20.05.1991, the testator had the premonition that he wouldperish in vehicular accident. [Para 17][711-B-C]

5. Much emphasis is laid on behalf of the appellants on thesubmissions that execution of the Will in accordance with therequirements of Section 63 of the Succession Act and Section 68of the Evidence Act has been duly established on record with thetestimony of the attesting witnesses as also the witness with whomthe Will along with the handwritten draft of the Will had beendeposited by the testator. The submissions so made on behalf ofthe appellants cannot be accepted for the reason that mere proofof the document in accordance with the requirements of Section68 of the Evidence Act is not final and conclusive for acceptanceof document as Will. When suspicious circumstances existand the suspicions have not been removed, the document inquestion cannot be accepted as Will. [Para 20][712-D-F]

6. Having dilated on various major features which,individually and cumulatively, lead only to the conclusion that thedocument in question cannot be accepted to be the last Will oftestator, it does not appear necessary to discuss several othershortcomings in the case of the plaintiffs, including various otherfactors like that the plaintiffs never took steps to get thestatement of the said Swamiji recorded, who was otherwisereferred to by all the material witnesses as being the person beforewhom the document was allegedly opened. [Para 23][713-E-G]

7. In view of this Court, the document in question falls flatat the very first question indicated in the case of H. VenkatachalaIyenger that is, as to whether the testator signed the Will inquestion. The answer to this question is only in the negative.This is apart from the fact that the document in question,propounded as Will, is non-compliant with the requirements ofclause (b) of Section 63 of the Succession Act. [Para 24][713-G-H]

A8. conjoint reading of Rules 23, 23A and 24 of Order XLIbrings forth the scope as also contours of the powers of remandthat when the available evidence is sufficient to dispose of thematter, the proper course for an Appellate Court is to follow themandate of Rule 24 of Order XLI CPC and to determine the suitfinally. It is only in such cases where the decree in challenge isBreversed in appeal and re-trial is considered necessary that theAppellate Court shall adopt the course of remanding the case. Itremains trite that order of remand is not to be passed in routinemanner because an unwarranted order of remand merelyelongates the life of the litigation without serving the cause ofCjustice. An order of remand only on the ground that the pointstouching the appreciation of evidence were not dealt with by theTrial Court may not be considered proper in given case becausethe First Appellate Court itself is possessed of jurisdiction toenter into facts and appreciate the evidence. There could, ofcourse, be several eventualities which may justify an order ofDremand or where remand would be rather necessary dependingon the facts and the given set of circumstances of case. [Para25.4][716-B-E]

H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors.AIR 1959 SC 443 : [1959] Suppl. SCR 426; P.P.K.EGopalan Nambiar v. P.P.K. Balakrishnan Nambiar andOrs. (1995) Supp 2 SCC 664 : [1995] 2 SCR 585; K.Laxmanan v. Thekkayil Padmini and Ors. : (2009) 1SCC 354 : [2008] 16 SCR 1117; Smt. Jaswant Kaur v.Smt. Amrit Kaur and Ors. (1977) 1 SCC : [1977] 1FSCR 925 – relied on.

Smt. Indu Bala Bose and Ors. v. Manindra ChandraBose and Anr. (1982) 1 SCC 20 : [1982] 1 SCR 1188;Uma Devi Nambiar and Ors. v. T.C. Sidhan (2004) 2SCC 321 : [2003] 6 Suppl. SCR 637; Mahesh KumarG(dead) by LRs v. Vinod Kumar and Ors (2012) 4 SCC387; Mohan Kumar v. State of Madhya Pradesh andOrs. (2017) 4 SCC 92 : [2017] 2 SCR 889; ShashiKumar Banerjee and Ors. v. Subodh Kumar Banerjeeand Ors. AIR 1964 SC 529 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6076of 2009.

From the Judgment and Order dated 26.10.2007 of the High Courtof Karnataka at Bangalore in RFA No. 910 of 2001.

K. Radhakrishnan, Sr. Adv., M/s. Lawyer S. Knit & Co., Adv. forthe Appellants.

Rajesh Mahale, Ms. Anjana Chandrashekar, Advs. for theERespondents.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J.

PRELIMINARY AND BRIEF OUTLINE

1. By way of this appeal, the plaintiff-appellants have challengedthe judgment and decree dated 26.10.2007 passed by the High Court ofKarnataka at Bangalore in Regular First Appeal No. 910 of 2001whereby, the High Court reversed the judgment and decree dated12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppalin Original Civil Suit No. 56 of 1994.

1.1 The civil suit aforesaid was filed by the plaintiff-appellants fordeclaration and injunction, essentially with the submissions that theyhad acquired ownership rights in the suit properties (described inSchedules to attached to the plaint) on the basis of Will dated

672SUPREME COURT REPORTS

A20.05.1991 executed by the owner of the said properties Sri Sangappason of Pampanna Shettar of Koppal; and that trust created by thedefendants on 28.05.1994, in the name “Shri Sangappa PampannaGadagshettar Trust, Koppal” in relation to the suit properties, was illegal,void and not binding on the plaintiffs. The contesting defendants i.e.,Bdefendant Nos. 1 to 5 refuted the claim so made by the plaintiffs whilequestioning the genuineness of the alleged Will dated 20.05.1991. Thedefendant No. 7, one of the erstwhile trustees of the said trust, however,admitted and endorsed the claim of the plaintiffs.

1.2 After framing necessary issues and after taking the oral andCdocumentary evidence adduced by the parties, the Trial Court, in itsjudgment dated 12.09.2001, decided the principal issue relating to thesaid Will dated 20.05.1991 in favour of the plaintiffs and, while alsoreturning its findings on other necessary issues in favour of the plaintiffs,proceeded to decree the suit with declaration that the trust created bythe defendants on 28.05.1994 was not binding on the plaintiffs, particularlyDin relation to the suit properties; and that the plaintiffs were owners ofthe suit properties as claimed. The Trial Court also issued injunction againstdefendant Nos. 1 to 5 that they shall not interfere with the plaintiffs’peaceful possession and enjoyment of the suit properties.

1.3 The judgment and decree so passed by the Trial Court wereEquestioned by the contesting defendants in the High Court by way of thesaid first appeal. The High Court, in its impugned judgment dated26.10.2007 proceeded to allow the appeal while reversing the decisionof Trial Court on the principal issue relating to the genuineness of theWill in question. The High Court found several unexplained suspiciousFcircumstances as also discrepancies in the Will in question and held thatthe alleged Will dated 20.05.1991 was not genuine document. Beingaggrieved, the plaintiffs have preferred the instant appeal.

THE LEAD PERSONS, PARTIES, WITNESSES ANDDOCUMENTS AS ALSO THE PROPERTIES INVOLVEDG

2. It is but apparent that genuineness of the Will dated 20.05.1991,said to have been executed by Sri Sangappa son of Pampanna Shettarof Koppal, allegedly bequeathing the suit properties to the plaintiffs, is inquestion in this case.

3. For comprehension of the subject-matter and for effectivedetermination of the questions raised in this appeal, we may take note ofthe principal persons involved in the matter with their respective roles asalso the documents and the properties in question as infra:

3.1 The testator of the Will in question:

Late Sri Sangappa son of Pampanna Shettar of Koppal.

He was businessman and was also the Chairman of SriGavisiddeshwara V.V. Trust, Koppal (which is different than the trustquestioned in the suit). Late Smt. Mahantamma was his wife.

Undisputedly, both the testator and his wife died in car accidenton 20.05.1994. The testator and his wife did not have any survivingchildren, as their children had died in infancy and they were issueless onthe date of their death.

3.2 The plaintiffs (the appellant Nos. 1 to 3 herein):

The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj,all sons of Basetteppa, claim to be the legatees under the Will in question.They are full-brothers and are grand-nephews of the testator’s wife.According to the plaintiffs, they were brought up by the testator and hiswife and they were staying with the testator.

3.3 The contesting defendants (Respondent Nos 1 to 4 herein):

The defendant No. 1 Sri Sharanabasappa son of Pampanna is theyounger brother of the testator; the defendant Nos. 2 and 3 Smt.Basavannemma and Smt. Siddama are the sisters of the testator; thedefendant No. 4 Sri Pampanna son of Basappa and defendant No. 5 SriSiddanna son of Fakirappa are the nephews of the testator.[1]-[2]

3.3.1 The defendant Nos. 6 to 8:

The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappaand No. 8 Dr. N.S.Gaikwad were joined in the suit for being the membersof the trust created by other defendants, which was questioned by theplaintiffs. The defendant No. 7 Sri Veerabasappa was said to be close

1 The defendant No. 2 Smt. Basavannemma expired during the pendency of the suit andthe fact was noted on the cause-title.

2 The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired during thependency of this appeal and his legal representatives were brought on record by theorder dated 30.03.2015.

Aassociate of the testator in running Gavisiddeshwar College of which,the testator was the Chairman of Governing Body. This defendant wasnot related to either of the parties; he, however, filed separate writtenstatement, admitting and endorsing the claim of the plaintiffs.[3]

3.4 The trust in question: Sri Sangappa Pampanna GadagshettarBTrust: The defendants created this trust on 28.05.1994 (in the name ofthe testator) with inclusion of the properties in question, to pursuephilanthropic and charitable purposes. The creation of this trust waschallenged in the suit.

3.5 Special mention: Sri Gavisiddeshwara Swami, KoppalC(Swamiji): According to the plaintiffs, the testator was philanthropicand devotee of Sri Gavisiddeshwara Swami, Koppal[4]; and the contestedWill was opened in the presence of Swamiji. However, Swamiji was notexamined as witness in this case.

3.6 The key witnesses:DPW-1 Sri Basetteppa:

He is father of the plaintiff Nos. 1 to 3. He allegedly used to assistthe testator in his business.

PW-3 Sri Radhakrishnarao and PW-4 Sri AyyanagowdaHiregowdar: They are claimed to be the attesting witnesses of theEcontested Will. PW-8 Sri Bhusnoormath, Advocate:

He was friend and advocate of the testator. Allegedly, the testatorhanded over the contested Will to him in sealed cover with theinstructions that the same was to be opened after his death, only in thepresence of Swamiji. The contested Will was allegedly opened after theFsudden demise of the testator and his wife in the presence of Swamiji on29.05.1994.

3.7 Relevant exhibited documents:

Ex. P.2: Will cancellation deed 26.09.1990 whereby, the testatorGcancelled an earlier Will executed by him in the year 1974.

3 The defendant No. 6 Gurushantappa expired on 13.10.2001. He was trustee of thetrust in question and no substitution was made in his place. The name of defendant No.7 Veerabasappa was deleted from the array of parties before the High Court on24.07.2006. The defendant No. 8 has remained on record as respondent No. 5 in thisappeal.H4 Hereinafter also referred to as ‘Swamiji’.

Ex. P.3: Handwritten draft of the Will said to have been preparedby the testator and kept in the sealed cover with the executed Will.

Ex. P.4: The contested Will dated 20.05.1991.

3.8 Suit properties:

Schedule A: Consisting of the parcels of land in Sy. No. 631 andSy. No. 632. These were in the name of the testator’s wife as per therelevant records.

Schedules B, & D: Consisting of shops and houses; admittedlythey belonged to the testator.[5]

SUMMARY OF THE PLEADINGS; ISSUES; AND EVIDENCE

4. Having taken note of the persons and the properties involved inthe matter, we may now summarise the pleadings of the parties, theissues framed by the Trial Court, and the evidence led by the parties forappreciating the respective findings of the Trial Court and the High Court.

The plaint:

4.1. The plaintiff-appellants filed the suit aforesaid seekingdeclaration and injunction with the averments, inter alia, that ScheduleA to properties were owned and possessed by the testator SriSangappa Shettar of Koppal; that Schedule properties, being the parcelsof land, were standing in the name of the testator’s wife Mahantammabut were purchased by him. It was averred that on 20.05.1994, the testatorSangappa Shettar and his wife died in car accident on the NationalHighway between Hubli-Shiggoan. It was also averred that both of themdied issueless as the children born to them had died in infancy. Theplaintiffs further pointed out the relations of the parties with the testatorand alleged that the testator was earlier joint with his family but, in oraround the year 1964, partition took place and thereafter, he remainedseparate until his demise. The plaintiffs asserted that their motherMahadevamma was the sister of the wife of testator; that the testatorSri Sangappa, out of love and affection, brought up the plaintiffs by keepingthem in his house; that the marriage of the plaintiffs’ father (PW-1) wasperformed by the testator in the year 1972; and that the deceased testatoralso requested the father of the plaintiffs to assist him in the business.The plaintiffs further averred that the deceased testator executed Will

5 The testator owned several other properties too that were not mentioned in the Will,and hence, are not part of the suit properties.

Ain the year 1974 but, being disillusioned by the behaviour of legatees, hecancelled the same on 26.09.1990. The plaintiffs pointed out that thedeceased testator was the Chairman of Sri Gavisiddeshwara V.V. Trust,Koppal and ardent devotee of Sri Gavisiddeshwara Swamiji of Koppal.The plaintiffs also averred that the deceased testator changed the nameof the business from Gurukrupa Stores to Gurukrupa Traders.B

4.1.1. The plaintiffs further averred that on 20.05.1991, the testatorSri Sangappa Shettar executed Will bequeathing Schedule propertiesin favour of the plaintiffs jointly; Schedule property in favour of theplaintiff No. 1; Schedule property in favour of the plaintiff No. 2; andSchedule property in favour of the plaintiff No. 3 whereas his remainingCproperties were directed to be kept intact and plaintiffs were directed toapply those properties for charitable purposes. The plaintiffs assertedthat the deed of the Will in question was executed by the deceasedvoluntarily and in sound state of mind; and after due execution, he keptthe Will in sealed cover and deposited the same with Sri Bhusanoormath,DAdvocate (PW-8) with directions to open the same after his death in thepresence of Swamiji. According to the plaintiffs, after the death of thetestator Sangappa, PW-8 Bhusanoormath, Advocate intimated about theWill and the same was opened on 29.05.1994 in the presence of Swamiji.

4.1.2. The plaintiffs maintained that the relationship between theEdeceased testator and the defendants was not cordial until his death;however, the deceased bequeathed house to defendant no. 3 so thatshe may reside therein. The plaintiffs alleged that the defendants werewell aware about the Will executed by the testator and yet created thetrust in question which was, in any case, not of any adverse effect onthe rights of the plaintiffs who had become owners of the suit propertiesFby virtue of the Will executed by the testator. With these averments, theplaintiffs sought declaration against the trust so created by the defendantsas also on their ownership rights over the properties in question andfurther for injunction against the defendants.

GThe written statement by defendant No. 1 as adopted bydefendant Nos. 2-6 and 8:

4.2. The contesting defendants refuted the plaint averments andcontended, inter alia, that the suit was not maintainable under theprovisions of Section 92 of the Code of Civil Procedure, 1908 (‘CPC’);that the trust in question was not impleaded as party; and that theH

description of suit properties was not correct.

4.2.1. While stating that both Sri Sangappa and his wife died inthe vehicular accident that took place at about 3:15 p.m. on 20.05.1994,these defendants stated that their dead bodies were identified after about18 hours; and that the defendant Nos. 1 to 3 performed their last rites.The allegation regarding partition was denied.

4.2.2. The contesting defendants further denied the assertionsthat the plaintiffs were brought up by Sangappa and maintained that theplaintiffs were living with their father and mother in rented house. Thecontesting defendants alleged that the relations between the deceasedand the father of the plaintiffs were strained; and that father of theplaintiffs was, in fact, running the business in the name of SriKaribasavashwar Trading Co. opposite to the place of business of thedeceased Sangappa that was running in the name of Gurukrupa Traders.4.2.3. While questioning the Will propounded by the plaintiffs, thecontesting defendants alleged that the plaintiffs are interested in theproperties of the deceased and had forged the Will with ulterior motives.These defendants denied that the deceased prepared the Will and keptthe same in the sealed cover and deposited it to the Advocate withinstruction to open the same in the presence of Swamiji. The contestingdefendants recounted various suspicious circumstances concerning theWill in question while alleging, inter alia, that the Will did not bear thesignature of deceased Sangappa; that there was mismatch in HindiCalendar date with that of English Calendar; that the past events werestated in the Will in such way that they would happen in future; thatvarious blanks were left in the description of the properties and evenotherwise, the description was incorrect; that the amount bequeathed toRajeshwari and Siddabasemma was not shown; and that the descriptionof the properties under the Will was inconsistent, incorrect andincomplete.

4.2.4. The contesting defendants also alleged that after the deathof Sangappa and his wife, they became the Class II heirs of the deceasedSangappa according to Hindu Succession Act and the trust was createdfor implementation of the noble thoughts of the deceased. The contestingdefendants also alleged that the declaration of the trust on 28.05.1994was prior to the creation of the deed of disputed Will, which was allegedlyopened on 29.05.1994. It was also alleged that the defendant No. 7

Astarted acting against the interest of the trust and he was removed fromthe trust by way of resolution.-The written statement by defendant No. 7 supporting theplaintiffs

B4.3. The defendant No. 7 filed separate written statement,essentially admitting the claim of the plaintiffs. This defendant statedthat he was close associate of the deceased in running GavisiddeshwarCollege; and that he was acquainted with the handwriting of the deceased.According to this defendant, after the demise of Sri Sangappa, theadvocate met him and informed about the trust with religious andCcharitable objects to be formed out of the properties not bequeathed.Further, one day he stopped for paying respect to Swamiji near the houseof Principal Mallikarjun Somalapur; and the advocate informed Swamijiabout the Will left by the deceased; and Swamiji instructed that the Willbe given effect to, which may give peace to the departed soul.

D4.3.1. The defendant No. 7 further stated that the advocate handedhim over xerox copy of the Will and he was convinced about itsgenuineness after examining the same and after enquiring from theattesting witnesses; and he also found that the draft was in the handwritingof the deceased. This defendant also referred to the proceedings of themeeting of the trust on 10.06.1994, where suggestion was made thatEthe legatees under the Will should go and establish their claim in theCourt of Law but he asserted that the Will should be given effect to as,according to him, litigating against the plaintiffs was equivalent to assertinga false case that the deceased had not executed his Will and therefore,he disassociated himself from the trust.F

Issues

4.4. On the pleadings of the parties, the Trial Court framed thefollowing issues for determination of the questions involved in the matter:-

“1.Whether the plaintiffs prove that the deceased SangappaGbequeathed the suit properties in their favour under the will deeddt: 20.05.1991?

2. Whether the defendants 1 to 5 prove that the CommissionAgency shop business was kept joint in the partition of 1954, heldduring the life time of father of deceased Sangappa?

3. Whether the suit is not maintainable for not impleading SriSangappa Pamapnna Gadadshettar Trust, Koppal, as party tothe suit?

4. Whether the suit is not properly valued and court fee paid is notcorrect?

5. Whether the plaintiffs are entitled for the relief of declarationthat the trust created under the name Sri Sangappa PampannaGandshettar Trust, Koppal, is illegal, void and not binding on them?

6. Whether the plaintiffs 1 to 3 are entitled for the relief ofdeclaration that they are the joint owners of suit scheduleproperties?

7. Whether the plaintiff No. 1 is entitled for the relief of declarationthat he is the owner of suit schedule properties?

8. Whether the plaintiff No. 2 is entitled for the relief of declarationthat he is the owner of suit schedule properties?

9. Whether the plaintiff No. 3 is entitled for the relief of declarationthat she is the owner of suit schedule properties?

10. Whether the plaintiffs are entitled for the consequential reliefof perpetual injunction against the defendants?

11. Whether the defendants are entitled for exemplary costs ofRs. 30,000?

12. What decree or order?”

Evidence

4.5. In order to prove their case, the plaintiffs examined as manyas 8 witnesses, the material among them being their father Sri Basetteppa(PW-1); the two attesting witnesses of the Will in question SriRadhakrishnarao (PW-3) and Sri Ayyanagowda Hiregowdar (PW-4);and the advocate Sri Bhusnoormath (PW-8), to whom the Will wasallegedly handed over in sealed cover and who opened the cover in thepresence of Swamiji. The plaintiffs also produced 17 documents includingEx. P.2: the Will cancellation deed 26.09.1990 whereby, the testatorcancelled the earlier Will executed by him in the year 1974; Ex. P.3:handwritten draft of the Will said to have been prepared by the testatorand kept in the sealed cover with the executed Will; and Ex. P.4: the

[2020] 6 S.C.R.

Acontested Will dated 20.05.1991. The defendants examined 2 witnessesand produced 16 documents.

FINDINGS OF THE TRIAL COURT

5. It is but apparent that the pivotal question in this case had beenas to whether the deceased Sangappa bequeathed the suit properties inBfavour of the plaintiffs under the Will dated 20.05.1991? The Trial Courttook up issue Nos. 1 and 6 to 10 together and found that Will in questionwas executed in accordance with Section 63 of the Indian SuccessionAct, 1925[6] and the same was proved as per the requirements of Section68 of the Indian Evidence Act, 1872[7]; and the plaintiffs got the rights asCclaimed thereunder. The relevant aspects of the findings of the TrialCourt could be summarised as follows:

5.1. The Trial Court held that all the circumstances establishingthat PW- 8 was handed over the cover containing the Will in questionand its draft and of his opening the same before Swamiji on 29.05.1994Dcannot be suspected as he had no personal gain from the plaintiffs andhad no enmity with the defendants.

5.2. The Trial Court further held that PW-3 and PW-4 have giventhe details about the Will but it was not necessary that they wouldmeticulously know the contents of the Will; that both have unanimouslyEspoken about the deceased Sangappa having shown them the typed Will,himself having read out the contents, and having signed before them.The Trial Court yet further observed that neither the Will was draftednor it was got typed in the presence of the attesting witnesses andeverything was ready for execution and therefore, any more detailsregarding typing of Will of the deceased were not expected. The TrialFCourt found that the Will in question was duly identified by the saidwitnesses as Ex. P. 4 and the signatures of Sangappa were also identifiedas Ex. P. 4 (a), (b) and (c); the signature of PW-3 was at Ex. P.4 (d) andthat of PW-4 at Ex. P. 4 (f). The signatures of other two witnesses werealso identified as Ex. P. 4 (e) and Ex. P. 4 (g). Thus, according to theGTrial Court, the mode of proof as provided under Section 68 of theEvidence Act stood duly complied with.

5.3. The Trial Court also noticed and recounted various featureswhich, in its opinion, lend credence to the factum of existence of the Will

6 Hereinafter referred to as ‘the Succession Act’.

H7 Hereinafter referred to as ‘the Evidence Act’.

in question. The Trial Court observed, inter alia, that the draft of the Willwas prepared in the handwriting of the deceased as Ex. P.3; that PW-1was relative of the deceased who had been helping the deceased inbusiness and was acquainted with the handwriting and signature ofdeceased; and thus, the handwriting and signature were identified as perSection 47 of Evidence Act. The Trial Court also observed that the draftwas in the cover containing the executed Will and there was no chanceto open the sealed cover; and that even if the Will did not contain allwhat was written in Ex. P.3, it was not ground to raise any suspicion.

5.4. The Trial Court further observed that the fact that the deceasedhad taken help of PW-1, distant relative, in presence of close relativelike defendant No. 1 and his sons, was sufficient to hold that there wasno love lasting between the deceased and the defendant No. 1 and hissons. The Trial Court observed that indisputably, the earlier Will, executedin the year 1974, was cancelled in the year 1990 but therein too, thedefendant No. 1 and his family had not been given anything; and theintention of the deceased was clear that he was not willing to giveanything to the defendant No. 1 and his family. The Trial Court alsoreferred to the fact that defendant Nos. 2 & 3, the sisters of the deceased,did not come before the Court to speak against the Will in question.

5.5. As regards connectivity of the deceased with the plaintiffs,the Trial Court referred to the fact that in the admission forms of theplaintiff No. 1 pertaining to the years 1991-92 and 1993-94 for I.U.C.classes in Gavisidddeshwar College, Koppal, the deceased had signed inplace of the guardian; and as per the address given in those applications,he was staying in Warkar Galli C/o Sangappa Gadedshetter. Hence, theallegations of the defendants that the plaintiffs were staying separatelywere rejected. The Trial Court observed that even if father and motherof the plaintiffs were later on staying separately due to difference ofopinion in women-fold, the fact remained that, prior to the year 1993, theplaintiffs and their parents were staying with the deceased as seen bythe voter lists (Exs. P.12-16) of Koppal Town pertaining to years 1975 to1993.5.6. As regards the state of mind of the deceased, the Trial Courtobserved that the deceased was in sound state of mind at the time ofexecution of Will; and he died 3 years after making of Will and, on the

Aday of his demise, had gone to attend the marriage 100 kms away, whichshowed that he was capable of managing himself. The Trial Court alsoobserved that some of the discrepancies indicated by the defendantshad essentially arisen because of self-scribing of the Will and it cannotbe said that the deceased was feeble person.

BDiscrepancies/Suspicions Answered by the Trial Court:

5.7. The Trial Court also proceeded to deal with some of thediscrepancies pointed out by the defendants in the Will in question andanswered the same as follows:

5.7.1. The Trial Court observed that the discrepancy in Hindi andCEnglish Calendar dates as found in Ex. P.3 cannot be made ground todisbelieve the entire Will, particularly when the date mentioned in theWill i.e., 20.05.1991 was falling on Monday and the same had been thestatements of PW-3 and PW-4. This discrepancy, according to the TrialCourt was of no bearing on the substance of the matter.D

5.7.2. The Trial Court further observed that absence of propertynumbers cannot be ground to hold that the Will was forged one; andthat the location of house property either in Warkar Galli or Katarki roadwas inconsequential so far as giving effect to the Will, as the deceasedwanted to give the property with the boundaries mentioned therein.ESimilarly, the property shown as item number 2 in Schedule wasavailable with municipal number and was admittedly belonging to thedeceased Sangappa. Therefore, according to the Trial Court, anydiscrepancy in particulars was of no bearing; and the blanks were alsonot casting any doubt or suspicion on the Will in question. The Trial Courtfurther observed that certain inconsistencies or certain improper directionsFmay not be called as suspicious circumstances; and that though thedescription of property in para 5 of the Will did not disclose the name ofthe legatee to whom it was bequeathed but, that too was not acircumstance to disbelieve the entire Will.

5.7.3. The Trial Court yet further observed that non-registrationGof Will cannot raise the presumption of forgery and fabrication. TheTrial Court also observed that the reason for keeping the Will secret wasthat the legatees under the earlier Will were not respecting the feelingsof the deceased and hence, the deceased kept everybody guessing aboutthe contents of his last Will.

5.7.4. As regards the suspicious circumstance asserted by thedefendants that deceased had not left anything for his wife in the Willexecuted in the year 1991, the Trial Court observed that when, apartfrom the properties shown in the Will, the deceased was leaving otherproperties too, definitely those properties would have gone to his wifeand hence, not making the provision for wife in the Will was not groundthat could be raised as suspicion. The Trial Court also observed that inpara 3 of the Will, 4 acres of the land of Irkalgada was given to GopurBasaveshwara Temple, which clearly showed that the deceased hadgiven properties to charitable purposes also.

5.7.5. As regards entering of the names of the legatees in the Willby the deceased by filing an application to municipality on 04.09.1993during his life time, the Trial Court observed that such entries were of nolegal effect and do not operate against the Will in question.

5.7.6. As regards the question raised by the defendants that eventhe past events were stated in the Will as if to happen in future, the TrialCourt observed that in para 4 of the Will, the deceased had stated thatSangappa Uttangi had promised to vacate the shop and godown in theyear 1990 and though the wording should have been different when theWill was written in the month of May 1991, but such fact was irrelevantbecause Uttangi was tenant and even if he had continued, that wouldnot have affected the rights of legatees under the Will.5.8. In relation to the suspicious features pertaining to thedocuments in question i.e., the draft of the Will Ex. P.3 and the deed ofWill Ex. P.4, the Trial Court observed that only the strong suspiciouscircumstances were required to be explained by the propounder of theWill; and proceeded to dismiss the suspicions suggested by the defendants,with the observations and findings, inter alia, as follows :

5.8.1. The Trial Court observed that the loose sheets were removedfrom the exercise note book and used by the deceased to write the draftbut, there was no evidence to show that the entire draft was made onone day; and the deceased might have written some pages on some dayand some pages on some other day. After noticing that chronologicalnumbers were not available on such loose sheets, the Trial Court observedthat the draft could be used to read the intention and to interpret the WillEx. P.4 but, it cannot be used to nullify the intention of the deceased. Inthis sequence, the Trial Court also observed that the persons challenging

Athe Will were not expected to get any property through successionbecause, in the event of the demise of Sangappa alone, the propertieswould have gone to his wife.

5.8.2. As regards non-examination of the typist, the Trial Courtobserved that it was not at all suspicious circumstance because theBWill was secret document and nobody, including the propounders, knewas to where the Will was typed.

5.8.3. Though the very opening recital in the Will in questionmentioned about the likelihood of an accident but in this regard, the TrialCourt observed that none except deceased himself could give explanationCas to what was the intuition for him to write in the Will about accidentand death in the accident.

5.8.4. As regards the document itself (Ex. P.4), the Trial Courtnoticed that page numbers 1, 2 and 5 of the Will were green coloured,whereas the colour of page numbers 3 and 4 was not the same butDobserved that different coloured sheets might have been used by thetypist.

5.8.5. The Trial Court, of course, noted the features that thesignature of the testator on page number 1 of the document in question(Ex. P.4) was made with an ink pen whereas ballpoint pen was used onEthe next page but, observed in this regard that one of the witnesses hadspoken that the ink pen did not write properly so the ballpoint pen wasused. The Trial Court further observed that so far putting the signaturesbefore the witnesses was concerned, there was no doubt that Ex. P. 4(a) (b) & (c) were the signatures of the deceased, as proved in thetestimonies of the attesting witnesses. The Trial Court yet further observedFthat the Will was kept by the deceased in sealed cover and this was astrong circumstance to show that the execution of Will by the deceasedcannot be suspected.

5.9. In its conclusion, the Trial Court held that from every angle,the Will in question was natural; and the plaintiffs had discharged theirGburden of proving the same and also dispelled the suspiciouscircumstances stated by the defendants. The Trial Court, accordingly,held that overall reading of the Will indicated that the deceased hadwritten the same with an intention of bequeathing the properties to thelegatees. Issue Nos. 1 and 6 to 10 were, therefore, decided in favour ofHthe plaintiffs.

5.10. The Trial Court also returned the findings on other issues infavour of the plaintiffs and, accordingly, decreed the suit with declarationand injunction as noticed hereinbefore.

REVERSAL BY THE HIGH COURT

6. In appeal by the contesting respondents against the judgmentand decree so passed by the Trial Court, the High Court took note of thematerial on record as also the rival contentions and framed two pointsfor determination as follows:

“i) Whether the plaintiffs proved that the deceased Sangappabequeathed his properties in their favour under the will dated20.5.1991?

ii) Whether the trial Court was justified in holding the will dated20.5.1991 executed by Sangappa as genuine or not?”

6.1. In relation to both the points aforesaid, which essentiallyrevolved around the question of genuineness of the Will in question, theHigh Court took note of the principles exposited by this Court in thecases of Smt. Indu Bala Bose and Ors. v. Manindra Chandra Boseand Anr.: (1982) 1 SCC 20 and Smt. Jaswant Kaur v. Smt. AmritKaur and Ors.: (1977) 1 SCC 369 and thereafter, proceeded toexamine the basic contentions of the defendants that by its very nature,the Will appeared to be fabricated document. After taking note of thediscrepancies in the document itself and other unnatural circumstancesas also after analysing the evidence of the star witnesses PW-4 andPW-8, the High Court found that the Trial Court had erred in decidingthe relevant issue in favour of the plaintiffs and, while reversing thefindings of the Trial Court, held that the contested Will was not genuineone. As the consequence, the judgment and decree passed by the TrialCourt were set aside. Of course, as regards the question of possession,the High Court left it open for the contesting defendants to take recourseto appropriate remedies in accordance with law.

6.2. As regards discrepancies in the document in question, aboutthe difference of the colour of the three sheets used and in the allegedsignatures of the testator, the High Court meticulously examined thedocument and recorded its observations and findings as follows:

“24. Keeping the observations of the Hon’ble Supreme Court inview, the WILL would have to be looked into since it has been

strenuously contended by the learned senior counsel for theappellant that the very sight of the WILL would indicate that thesame has been fabricated. The original of the WILL dated20.5.1991 is marked as Ex.P4 which is available in the recordssecured from the Court below. The same is typed in Kannadascript on three sheets which are normally used for typing paperswhich are submitted to Court. The colour of the three sheets arenot similar. The first sheet is light green, the second sheetis very light in colour (almost white) and the third sheet isdarker among the three. At the outset, it is clear that allthe three sheets are not from the same stock and if thesame was got typed from typist in normal course asclaimed, the sheets could not have been different from oneanother. The alleged signature of the testator is found at the bottomof each page on the facing side only. Though there is typedmatter on the reverse side at pages 2 and 4 the same doesnot contain signatures. Even the signatures found on thefacing sheet are not uniformly affixed. On first page thesignature is more than one inch below the last line of the typedmatter and has the appearance of prefixed signature. The secondsheet (page-3) contains signature near to the typed matter. Thelast sheet (page 5) has the signature which is at distance ofabout an inch below the last line of the typed matter. The name ofthe alleged testator typed below the signature has all indicationsof the same being typed below an existing signature. This is evidentfrom the fact that the name would not have been typed so lowfrom the typed matter, particularly when the place ‘Koppal’ anddate typed on the left side of the sheet is at lesser distance fromthe typed matter and are not in alignment with each other. Thespace provided for signature of four witnesses seems veryunnatural and even in that circumstance the name of the allegedtestator would not have been typed so low if it was naturaltyping on blank sheet. The first page and last page havebeen signed using fountain ink pen but the pen used is notsimilar to one another. The second sheet is signed by aballpoint pen. The pattern of signatures if compared with theearlier admitted WILL dated 29.6.1990 which was registered butlater revoked, which is marked as Ex.P1 would indicate uniformpattern immediately below the written matter without any gap

and even small correction has been attested, whereas in thepropounded WILL, blanks have been left. It does not require adetective like Sherlock Holmes to notice thesediscrepancies which are visible to naked eye and the verysight of the WILL does not inspire confidence that it couldbe genuine.”

(emphasis supplied)

6.3. The unusual feature of the use of different instruments whilemaking three signatures on the same document came up for its fullerexposition when the High Court proceeded to examine the explanationsought to be furnished by PW–4. While rejecting the testimony of thiswitness PW-4, the High Court observed and found, inter alia, as under:–

“27. In this background, the discrepancies in the signatures andthe different pens which were used also assumes importance. Inthis regard P.W.-4, Sri Ayyanagowda Hiregowdar who claims tobe one of the attesting witness of the WILL in his cross examinationadmitted that Ex.P4(a) is the signature with ink pen, exceptEx.P4(c) being the signature with ball pen and again signatureEx.P4(b) is by ink pen and he has also stated that the signaturesin Ex.P4(a) and (b) have been made by the very same pen. Hehas further stated that both the pens were available with thetestator. He has sought to explain the same by stating that whilesigning the third page the ink pen was not working, this explanationis palpably false and cannot be believed for the reason that thefirst page has been signed by fountain ink pen and the third pageagain has been signed by the fountain ink pen whereas the secondpage has been signed by ballpoint pen. Hence this would notonly indicate the incorrect statement but would certainly indicatethe unnatural circumstances that person would be so carelesswhile signing document in the nature of WILL which is fullyknown to him that it is document regarding which he would notbe available to explain the situation. One other reason for whichthe said explanation cannot be believed is that if the fountain inkpen used by the testator was really not working after affixingthe signature on the first page, it cannot be understood asto how he could have signed the second sheet with theballpoint pen and thereafter once again sign the third sheetwith the fountain ink pen more so, when the ink pen used

Ain the first sheet and the third sheet are not similar to oneanother. That apart the signatures of the so called attestingwitnesses to the WILL would indicate that the same have beenmade with fountain ink pen and the said ink of these signaturesare much fresher than the signatures of the alleged testator…..”

(emphasis supplied)

6.4. The High Court also rejected the contentions of the plaintiffsthat the alleged discrepancies could not take away the validity of theWill as it was produced by PW-8 and the sealed envelope was opened inthe presence of Swamiji. The High Court pointed out that the veryCassertion, about availability of the handwritten draft of the proposed WillEX. P.3 in the sealed envelope along with the alleged executed Will EX.P.4, was that of another unnatural feature because if the testator hadhimself completed and executed the Will in the presence of witnesses,there was no reason to place the incomplete handwritten draft in theenvelope. The High Court proceeded to observe that such feature gaveDstrong indication that the plaintiffs had been able to place their hands onan incomplete draft and have fabricated the Will using blank sheets signedby the testator at different times; and only to make it appear authentic,the story of the envelope containing the draft was weaved. While rejectingthe story about the availability of the sealed envelope with the advocateEPW-8 and its opening before Swamiji, the High Court also pointed outthat the advocate concerned, PW-8, was known to the testator as alsoto the father of the plaintiffs PW-1 inasmuch as he had indeed appearedin his professional capacity on behalf of PW-1. Moreover, and as noticed,in regard to the assertion of the plaintiffs and the witnesses that thecover containing the Will was opened before Swamiji, the High CourtFobserved that the said Swamiji was very important and material witnessin this case but the plaintiffs never took any steps to get his statementrecorded.6.5. After taking note of the aforesaid inexplicable features,unnatural circumstances, unreliability of the witnesses of the plaintiffsGand the fact that no steps were taken by the plaintiffs to get recordedthe statements of material witness, namely the said Swamiji, the HighCourt also took note of the approach of the Trial Court and did notapprove the same while observing, inter alia, as under:

“28. The said discrepancies though noticed have been sought tobe explained by the learned Judge of the Court below in manneras though to overcome the same wherein the learned Judge statesthat the difference in the colour of the papers cannot be suspectedbecause it could have been used by the typist. The learned Judgefurther holds that it cannot be suspected since the said paperscontain the signatures and the signatures have been identified bythe witnesses. As noticed by us above, the very signatures itselfare doubtful that it has been affixed after the matter was typedand the explanation given by the witnesses are even more doubtfuland as such the learned Judge could not have lightly brushed asidethese aspects.”

6.6. In view of the above, the High Court allowed the appeal andset aside the judgment and decree of the Trial Court. Hence, theunsuccessful plaintiffs have preferred this appeal.

RIVAL CONTENTIONS

7. Assailing the judgement of the High Court, learned senior counselfor the plaintiff–appellants has strenuously argued that the High Courthas seriously erred in setting aside the findings of the Trial Court, whichwere based on due appreciation of the consistent evidence of the materialwitnesses. The learned counsel has contended that the facts are amplyestablished on record that on 20.05.1991, the testator executed the Willin question in accordance with the provisions of Section 63 of theSuccession Act and Section 68 of the Evidence Act with his signaturesand with attestation by more than two witnesses who had seen the testatorsigning the Will. According to the learned counsel, the testator was insound and disposing state of mind while voluntarily executing the Will, asrequired by Section 59 of Indian Succession Act. PW-3 and PW-4deposed before the Trial Court that the testator himself showed the typedWill and put his signatures on the same; and the Will was duly attestedby PW-3 and PW-4. Hence, the requirements of Section 68 of theEvidence Act are fulfilled. The learned counsel has referred to the decisionin the case of H. Venkatachala Iyengar v. B.N. Thimmajamma andOrs: AIR 1959 SC 443 and has contended that with all the legalrequirements being fulfilled and there being no reason to ignore ordisbelieve the Will, the Trial Court had rightly decreed the suit and theHigh Court has not been justified in upsetting the considered decision ofthe Trial Court.

A7.1. The learned senior counsel has contended that the appellantshave dispelled all suspicious circumstances qua the Will in question; thatas per Section 74 of the Succession Act, it is not necessary that technicalwords be used in the Will; and what is necessary is only that the intentionof the testator ought to be set out in the Will. According to the learnedcounsel, Ex. P3, the handwritten draft, makes the intention of the testatorBclear that he wanted to bequeath his properties to the appellants. Further,PW-5 and defendant No. 7 have clearly identified the signature of thetestator. The learned counsel would urge that with the intention of thetestator having been amply established on record, some blanks in theWill or some other minor inconsistencies cannot take away the substanceCthereof, particularly when the properties could be identified with thehelp of the boundaries. The learned counsel has referred to the decisionsin Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose andAnr.: (1982) 1 SCC 20 and P.P.K. Gopalan Nambiar v. P.P.K.Balakrishnan Nambiar and Ors: 1995 Supp (2) SCC 664. Thelearned counsel has further contended that exclusion of any legal heirDfrom the Will is not suspicious circumstance and has referred to thedecision in Uma Devi Nambiar and Ors. v. T.C. Sidhan: (2004) 2SCC 321.

7.2. The learned senior counsel has further strenuously arguedthat it had not been the contention of the respondents that the documentEin question was drawn on blank signed papers and the observation of theHigh Court that the document in question was drawn on blank signedpapers does not find support in the evidence and pleadings on record. Inthis regard, the learned counsel has relied upon the decision in MaheshKumar (dead) by LRs v. Vinod Kumar and Ors: (2012) 4 SCC 387.F

7.3. In the last and in the alternative, the learned senior counselhas argued that if at all the High Court found the want of requisite evidence,the proper course was to exercise the power of remand under theprovisions of Order XLI Rule 23-A CPC. The learned counsel hascontended that the High Court being the first Court of Appeal, ought toGhave given the opportunity to the appellants to adduce proper additionalevidence, considering the fact that the findings were being made onsuspicious circumstances other than those raised by the defendants intheir pleadings and evidence. The learned counsel has referred to andrelied upon the decision in the case of Mohan Kumar v. State of MadhyaPradesh and Ors.: (2017) 4 SCC 92.H

8. Per contra, learned counsel for the contesting respondents hasduly supported the judgement of the High Court with reference to thereasonings and observations therein. The learned counsel has also arguedthat right from the beginning, it had been the case of the respondentsthat the propounded Will was nothing but fabricated document and it isincorrect to say that particular objection had not been taken by therespondents. The learned counsel has referred to the decision inK. Laxmanan v. Thekkayil Padmini and Ors.: (2009) 1 SCC 354.

POINTS FOR DETERMINATION

9. In view of the submissions made, the following points essentiallyarise for determination in this case:

1. As to whether the High Court was right in reversing the decisionof the Trial Court and in holding that the contested Will was not genuinedocument?

2. As to whether the High Court ought to have consideredremanding the case to the Trial Court?

WILL – PROOF AND SATISFACTION OF THE COURT

10. As noticed, the basic point for determination in this case is asto whether the High Court was justified in taking view contrary thanthat of the Trial Court and in holding that the Will propounded by theplaintiffs is not the genuine Will of the deceased Sangappa. Determinationof this point, obviously, revolves around the legal principles applicable tothe making of testamentary document like Will, its proof, and itsacceptance by the Court.

10.1. The Will being rather solemn document that comes intooperation after the death of the testator, special provisions are made inthe statutes for making of Will and for its proof in Court of law.Section 59 of the Succession Act provides that every person of soundmind, not being minor, may dispose of his property by Will. Will orany portion of Will, the making of which has been caused by fraud orcoercion or by any such importunity that has taken away the free agencyof the testator, is declared to be void under Section 61 of the SuccessionAct; and further, Section 62 of the Succession Act enables the maker ofa Will to make or alter the same at any time when he is competent todispose of his property by Will. Chapter III of Part IV of the SuccessionAct contains the provisions for execution of unprivileged Wills (as

Adistinguished from privileged Wills provided for in Chapter IV). Section63 of the Succession Act, relevant for the present purpose, reads asunder: –

“63. Execution of unprivileged Wills.-Every testator, notbeing soldier employed in an expedition or engaged in actualBwarfare, or an airman so employed or engaged, or mariner atsea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will, or itshall be signed by some other person in his presence and by hisdirection.C(b) The signature or mark of the testator, or the signature of theperson signing for him, shall be so placed that it shall appear thatit was intended thereby to give effect to the writing as Will.

(c) The Will shall be attested by two or more witness, each ofwhom has seen the testator sign or affix his mark to the Will orDhas seen some other person sign the Will, in the presence and bythe direction of the testator, or has received from the testator apersonal acknowledgment of his signature or mark, or the signatureof such other person; and each of the witnesses shall sign the Willin the presence of the testator, but it shall not be necessary thatEmore than one witness be present at the same time, and noparticular form of attestation shall be necessary.”

10.2. Elaborate provisions have been made in Chapter VI of theSuccession Act, in Sections 74 to 111, for construction of Wills which, intheir sum and substance, make the intention of legislature clear that anyFirrelevant misdescription or error is not to operate against the Will; andapproach has to be to give effect to Will once it is found to have beenexecuted in the sound state of mind by the testator while exercising hisown free will. However, when the Will is surrounded by suspiciouscircumstances, the Court would expect that the legitimate suspicionGshould be removed before the document in question is accepted as thelast Will of the testator.

10.3. As noticed, as per Section 63 of the Succession Act, interalia, requires that the Will ought to be attested by two or more witnesses.Hence, any document propounded as Will cannot be used as evidenceHunless at least one attesting witness has been examined for the purpose

of proving its execution, if such witness is available and is capable ofgiving evidence as per the requirements of Section 68 of the EvidenceAct, that reads as under: –

“68. Proof of execution of document required by law to beattested.-If document is required by law to be attested, it shallnot be used as evidence until one attesting witness at least hasbeen called for the purpose of proving its execution, if there be anattesting witness alive, and subject to the process of the Courtand capable of giving evidence:

Provided that it shall not be necessary to call an attestingwitness in proof of the execution of any document, not being aWill, which has been registered in accordance with the provisionsof the Indian Registration Act, 1908 (16 of 1908), unless itsexecution by the person by whom it purports to have been executedis specifically denied.”

10.4. Learned Counsel for the appellant has referred to the decisionin the case of H. Venkatachala Iyenger (supra). It is noticed that inparagraphs 18 to 22 of the said decision, this Court has synthesised andcondensed almost the entire panorama relating with execution and proofof Will and the guiding principles for Court while examining thedocument which is propounded as Will. These passages in the said 3-Judge Bench decision of this Court could be usefully reproduced asunder: –

“18. What is the true legal position in the matter of proof of wills?It is well-known that the proof of wills presents recurring topicfor decision in courts and there are large number of judicialpronouncements on the subject. The party propounding will orotherwise making claim under will is no doubt seeking to provea document and, in deciding how it is to be proved, we mustinevitably refer to the statutory provisions which govern the proofof documents. Sections 67 and 68 of the Evidence Act are relevantfor this purpose. Under Section 67, if document is alleged to besigned by any person, the signature of the said person must beproved to be in his handwriting, and for proving such handwritingunder Sections 45 and 47 of the Act the opinions of experts and ofpersons acquainted with the handwriting of the person concernedare made relevant. Section 68 deals with the proof of the execution

Aof the document required by law to be attested; and it providesthat such document shall not be used as evidence until oneattesting witness at least has been called for the purpose of provingits execution. These provisions prescribe the requirements andthe nature of proof which must be satisfied by the party whorelies on document in court of law. Similarly, Sections 59 andB63 of the Indian Succession Act are also relevant. Section 59provides that every person of sound mind, not being minor, maydispose of his property by will and the three illustrations to thissection indicate what is meant by the expression “a person ofsound mind” in the context. Section 63 requires that the testatorCshall sign or affix his mark to the will or it shall be signed by someother person in his presence and by his direction and that thesignature or mark shall be so made that it shall appear that it wasintended thereby to give effect to the writing as will. This sectionalso requires that the will shall be attested by two or more witnessesas prescribed. Thus, the question as to whether the will setDup by the propounder is proved to be the last will of thetestator has to be decided in the light of these provisions.Has the testator signed the will? Did he understand thenature and effect of the dispositions in the will? Did he puthis signature to the will knowing what it contained? StatedEbroadly it is the decision of these questions whichdetermines the nature of the finding on the question of theproof of wills. It would prima facie be true to say that the willhas to be proved like any other document except as to the specialrequirements of attestation prescribed by Section 63 of the IndianSuccession Act. As in the case of proof of other documents so inFthe case of proof of wills it would be idle to expect proof withmathematical certainty. The test to be applied would be the usualtest of the satisfaction of the prudent mind in such matters.

19. However, there is one important feature which distinguisheswills from other documents. Unlike other documents the willspeaks from the death of the testator, and so, when it is propoundedor produced before court, the testator who has already departedthe world cannot say whether it is his will or not; and this aspectnaturally introduces an element of solemnity in the decision of thequestion as to whether the document propounded is proved to bethe last will and testament of the departed testator. Even so, in

dealing with the proof of wills the court will start on the sameenquiry as in the case of the proof of documents. The propounderwould be called upon to show by satisfactory evidence that thewill was signed by the testator, that the testator at the relevanttime was in sound and disposing state of mind, that he understoodthe nature and effect of the dispositions and put his signature tothe document of his own free will. Ordinarily when the evidenceadduced in support of the will is disinterested, satisfactory andsufficient to prove the sound and disposing state of the testator’smind and his signature as required by law, courts would be justifiedin making finding in favour of the propounder. In other words,the onus on the propounder can be taken to be dischargedon proof of the essential facts just indicated.20. There may, however, be cases in which the execution ofthe will may be surrounded by suspicious circumstances.The alleged signature of the testator may be very shaky anddoubtful and evidence in support of the propounder’s case thatthe signature in question is the signature of the testator may notremove the doubt created by the appearance of the signature; thecondition of the testator’s mind may appear to be very feeble anddebilitated; and evidence adduced may not succeed in removingthe legitimate doubt as to the mental capacity of the testator; thedispositions made in the will may appear to be unnatural, improbableor unfair in the light of relevant circumstances; or, the will mayotherwise indicate that the said dispositions may not be the resultof the testator’s free will and mind. In such cases the court wouldnaturally expect that all legitimate suspicions should becompletely removed before the document is accepted asthe last will of the testator. The presence of such suspiciouscircumstances naturally tends to make the initial onus veryheavy; and, unless it is satisfactorily discharged, courtswould be reluctant to treat the document as the last will ofthe testator. It is true that, if caveat is filed alleging the exerciseof undue influence, fraud or coercion in respect of the executionof the will propounded, such pleas may have to be proved by thecaveators; but, even without such pleas circumstances may raisea doubt as to whether the testator was acting of his own free will

in executing the will, and in such circumstances, it would be partof the initial onus to remove any such legitimate doubts in thematter.

21. Apart from the suspicious circumstances to which we havejust referred, in some cases the wills propounded disclose anotherinfirmity. Propounders themselves take prominent part in theexecution of the wills which confer on them substantial benefits.If it is shown that the propounder has taken prominent part inthe execution of the will and has received substantial benefit underit, that itself is generally treated as suspicious circumstanceattending the execution of the will and the propounder is requiredto remove the said suspicion by clear and satisfactory evidence.It is in connection with wills that present such suspiciouscircumstances that decisions of English courts often mention thetest of the satisfaction of judicial conscience. It may be that thereference to judicial conscience in this connection is heritagefrom similar observations made by ecclesiastical courts in Englandwhen they exercised jurisdiction with reference to wills; but anyobjection to the use of the word “conscience” in this context would,in our opinion, be purely technical and academic, if not pedantic.The test merely emphasizes that, in determining the question as towhether an instrument produced before the court is the last willof the testator, the court is deciding solemn question and it mustbe fully satisfied that it had been validly executed by the testatorwho is no longer alive.

22. It is obvious that for deciding material questions of fact whicharise in applications for probate or in actions on wills, no hard andfast or inflexible rules can be laid down for the appreciation of theevidence. It may, however, be stated generally that apropounder of the will has to prove the due and validexecution of the will and that if there are any suspiciouscircumstances surrounding the execution of the will thepropounder must remove the said suspicions from the mindof the court by cogent and satisfactory evidence. It is hardlynecessary to add that the result of the application of these twogeneral and broad principles would always depend upon the factsand circumstances of each case and on the nature and quality ofthe evidence adduced by the parties. It is quite true that, as

observed by Lord Du Parcq in Harmes v. Hinkson:(1946) 50C.W.N. 895, “where will is charged with suspicion, the rulesenjoin reasonable scepticism, not an obdurate persistence indisbelief. They do not demand from the Judge, even incircumstances of grave suspicion, resolute and impenetrableincredulity. He is never required to close his mind to the truth”. Itwould sound platitudinous to say so, but it is nevertheless true thatin discovering truth even in such cases the judicial mind mustalways be open though vigilant, cautious and circumspect.”

(emphasis supplied)

10.5. Learned Counsel for the appellant has referred to paragraphs7 and 8 of the decision of this Court in the case of Indu Bala Bose(supra) which may also be taken note of as under: –

“7. This Court has held that the mode of proving Will does notordinarily differ from that of proving any other document exceptto the special requirement of attestation prescribed in the case ofa Will by Section 63 of the Succession Act. The onus of provingthe Will is on the propounder and in the absence of suspiciouscircumstances surrounding the execution of the will, proof oftestamentary capacity and the signature of the testator as requiredby law is sufficient to discharge the onus. Where however thereare suspicious circumstances, the onus is on the propounderto explain them to the satisfaction of the court before thecourt accepts the Will as genuine. Even where circumstancesgive rise to doubts, it is for the propounder to satisfy the conscienceof the court. The suspicious circumstances may be as to thegenuineness of the signatures of the testator, the condition of thetestator’s mind, the dispositions made in the Will being unnatural,improbable or unfair in the light of relevant circumstances, or theremight be other indications in the Will to show that the testator’smind was not free. In such case the court would naturally expectthat all legitimate suspicions should be completely removed beforethe document is accepted as the last Will of the testator. If thepropounder himself takes prominent part in the execution of thewill which confers substantial benefit on him, that is also acircumstance to be taken into account, and the propounder isrequired to remove the doubts by clear and satisfactory evidence.

AIf the propounder succeeds in removing the suspiciouscircumstances the court would grant probate, even if the will mightbe unnatural and might cut off wholly or in part near relations.:AIR 1964 SC 529

8. Needless to say that any and every circumstance is not aB“suspicious” circumstance. circumstance would be“suspicious” when it is not normal or is not normallyexpected in normal situation or is not expected of normalperson.”

(emphasis supplied)

C10.6. In the case of P.P.K. Gopalan Nambiar (supra), the Will inquestion was registered one and the endorsement made by the Registrarshowed that the testator was in sound disposing state of mind and theWill was executed out of the testator’s free will. It was also found thatthe testator died 8 years after registration of the Will and though legateeDpropounded the Will in his written statement, but no plea was taken bythe opposite party to question the validity of the Will. The Will was dulyproved with examination of the attesting witness. In the givencircumstances, the fact that whole of the estate was given to one sonunder the Will while depriving two daughters, was not considered to bea suspicious circumstance. On the requisite approach, this Court said asEunder:-“5. Under these circumstances, the suspicion which excited themind of the District Munsif is without any basis and he pickedthem from his hat without fact-foundation. The Subordinate Judgehad rightly considered all the circumstances and upheld the will.FThe High Court, without examining the evidence, by merelyextracting legal position set out by various decisions of this Courthas upset the finding of the fact recorded by the Subordinate Judgein one sentence. It is trite that it is the duty of the propounder ofthe will to prove the will and to remove all the suspected features.GBut there must be real, germane and valid suspiciousfeatures and not fantasy of the doubting mind.”

(emphasis supplied)

10.7. In the case of Uma Devi Nambiar (supra), this Courtreviewed the case law dealing with the Will to large extent and, whileH

referring to the Constitution Bench decision of this Court in the case ofShashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee andOrs.: AIR 1964 SC 529, observed that merely because the naturalheirs have either been excluded or lesser share had been given to them,by itself, will not be considered to be suspicious circumstance. ThisCourt observed, inter alia, as under:-

“15. Section 63 of the Act deals with execution of unprivilegedWills. It lays down that the testator shall sign or shall affix hismark to the Will or it shall be signed by some other person in hispresence and by his direction. It further lays down that the Willshall be attested by two or more witnesses, each of whom hasseen the testator signing or affixing his mark to the Will or hasseen some other person sign the Will, in the presence and by thedirection of the testator and each of the witnesses shall sign theWill in the presence of the testator. Section 68 of the IndianEvidence Act, 1872 (in short the “Evidence Act”) mandatesexamination of one attesting witness in proof of Will, whetherregistered or not. The law relating to the manner and onus ofproof and also the duty cast upon the court while dealing with acase based upon Will has been examined in considerable detailin several decisions of this Court…….A Constitution Bench ofthis Court in Shashi Kumar Banerjee’s case succinctly indicatedthe focal position in law as follows: (AIR p. 531, para 4)

“The mode of proving Will does not ordinarily differ fromthat of proving any other document except as to the specialrequirement of attestation prescribed in the case of Will bySection 63 of the Indian Succession Act. The onus of provingthe Will is on the propounder and in the absence of suspiciouscircumstances surrounding the execution of the Will, proof oftestamentary capacity and the signature of the testator asrequired by law is sufficient to discharge the onus. Wherehowever there are suspicious circumstances, the onus is onthe propounder to explain them to the satisfaction of the courtbefore the court accepts the Will as genuine. Where thecaveator alleges undue influence, fraud and coercion, the onusis on him to prove the same. Even where there are no suchpleas but the circumstances give rise to doubts, it is for thepropounder to satisfy the conscience of the court. The suspicious

circumstances may be as to the genuineness of the signatureof the testator, the condition of the testator’s mind, thedispositions made in the Will being unnatural, improbable orunfair in the light of relevant circumstances or there might beother indications in the Will to show that the testator’s mindwas not free. In such case the court would naturally expectthat all legitimate suspicion should be completely removed beforethe document is accepted as the last Will of the testator. If thepropounder himself takes part in the execution of the Will whichconfers substantial benefit on him, that is also circumstanceto be taken into account, and the propounder is required toremove the doubts by clear and satisfactory evidence. If thepropounder succeeds in removing the suspicious circumstancesthe court would grant probate, even if the Will might be unnaturaland might cut off wholly or in part near relations.”

16. Will is executed to alter the ordinary mode of successionand by the very nature of things it is bound to result in earlierreducing or depriving the share of natural heirs. If personintends his property to pass to his natural heirs, there is nonecessity at all of executing Will. It is true that propounderof the Will has to remove all suspicious circumstances. Suspicionmeans doubt, conjecture or mistrust. But the fact that naturalheirs have either been excluded or lesser share has beengiven to them, by itself without anything more, cannot be heldto be suspicious circumstance specially in case where thebequest has been made in favour of an offspring. As held inP.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar andOrs.: [1995] 2 SCR 585, it is the duty of the propunder of theWill to remove all the suspected features, but there must bereal, germane and valid suspicious features and not fantasy ofthe doubting mind. It has been held that if the propoundersucceeds in removing the suspicious circumstances, the courthas to give effect to the Will, even if the Will might be unnaturalin the sense that it has cut off wholly or in part near relations.…… In Rabindra Nath Mukherjee and Anr. v. PanchananBanerjee (dead) by LRs. and Ors.: AIR 1995 SC 1684, it wasobserved that the circumstance of deprivation of natural heirsshould not raise any suspicion because the whole idea behindexecution of the Will is to interfere with the normal line of

succession and so, natural heirs would be debarred in everycase of Will. Of course, it may be that in some cases they arefully debarred and in some cases partly.”

10.8. In the case of Mahesh Kumar (supra), this Court indicatedthe error of approach on the part of High Court while appreciatingevidence relating to the Will in the following:-

“44. The issue which remains to be examined is whether the HighCourt was justified in coming to the conclusion that the executionof the will dated 10-2-1992 was shrouded with suspicion and theappellant failed to dispel the suspicion? At the outset, we deem itnecessary to observe that the learned Single Judge misread thestatement of Sobhag Chand (DW3) and recorded something whichdoes not appear in his statement. While Sobhag Chand categoricallystated that he had signed as the witness after Shri Harishankarhad signed the will, the portion of his statement extracted in theimpugned judgment gives an impression that the witnesses hadsigned even before the executant had signed the will.45. Another patent error committed by the learned Single Judge isthat he decided the issue relating to validity of the will by assumingthat both the attesting witnesses were required to append theirsignatures simultaneously. Section 63(c) of the 1925 Act does notcontain any such requirement and it is settled law that examinationof one of the attesting witnesses is sufficient. Not only this, whilerecording an adverse finding on this issue, the learned Single Judgeomitted to consider the categorical statements made by DW 3and DW 4 that the testator had read out and signed the will intheir presence and thereafter they had appended their signatures.

46. The other reasons enumerated by the learned Single Judgefor holding that the execution of will was highly suspicious arebased on mere surmises/conjectures. The observation of thelearned Single Judge that the possibility of obtaining signatures ofShri Harishankar and attesting witnesses on blank paper andpreparation of the draft by Shri S.K. Agarwal, Advocate on pre-signed papers does not find even semblance of support from thepleadings and evidence of the parties. If Respondent 1 wanted toshow that the will was drafted by the advocate after ShriHarishankar and attesting witnesses had signed blank papers, he

Acould have examined or at least summoned Shri S.K. Agarwal,Advocate, who had represented him before the Board of Revenue.

10.9. In the case of K. Laxmanan (supra), this Court, withreference to the settled principles including those in the case of ShashiBKumar Banerjee (supra) re-emphasised on the requirement that thepropounder has to prove the legality of execution of the Will as also thegenuineness thereof by proving the testamentary capacity of the testatoras also his signatures and further by proving absence of suspiciouscircumstances. This Court, inter alia, said,-

C“18……The propounder has to prove the legality of the executionand genuineness of the said will by proving absence of suspiciouscircumstances surrounding the said will and also by proving thetestamentary capacity and the signature of the testator. Once thesame is proved, it could be said that the propounder has dischargedthe onus.D

19. When there are suspicious circumstances regarding theexecution of the will, the onus is also on the propounder to explainthem to the satisfaction of the court and only when suchresponsibility is discharged, the court would accept the will asgenuine. Even where there are no such pleas, but circumstancesEgive rise to doubt, it is on the propounder to satisfy the conscienceof the court. Suspicious circumstances arise due to several reasonssuch as with regard to genuineness of the signature of the testator,the conditions of the testator’s mind, the dispositions made in thewill being unnatural, improbable or unfair in the light of relevantFcircumstances or there might be other indications in the will toshow that the testator’s mind was not free. In such case, thecourt would naturally expect that all legitimate suspicion shouldbe completely removed before the document is accepted as thelast will of the testator…..”

G10.9.1. In K. Laxmanan (supra), this Court also explained theprinciples governing the pleadings in such matters while observing, interalia, as under:–

“28. It is however established in the present case that the issue ofvalidity of the execution of both the deed of gift and deed of willwas taken up by the respondent-plaintiff and specifically deniedH

in the affidavits filed in respect of the injunction applications. Theparties have also gone to trial knowing fully well thatexecution of both these documents is under challenge.Parties knowing fully the aforesaid factual position led theirevidence also to establish the legality and validity of boththe documents. In that view of the matter, it cannot be saidthat the said document should be deemed to be admittedby the plaintiff as no replication was filed by the plaintiff.”

(emphasis supplied)

10.10. We may also usefully refer to the principles enunciated inthe case of Jaswant Kaur (supra) for dealing with Will shrouded insuspicion, which were duly taken note of by the High Court in its impugnedjudgement, as follows: –

“9. In cases where the execution of will is shrouded insuspicion, its proof ceases to be simple lis between theplaintiff and the defendant. What, generally, is an adversaryproceeding becomes in such cases matter of the court’sconscience and then the true question which arises forconsideration is whether the evidence led by the propounderof the will is such as to satisfy the conscience of the courtthat the will was duly executed by the testator. It is impossibleto reach such satisfaction unless the party which sets up the willoffers cogent and convincing explanation of the suspiciouscircumstances surrounding the making of the will.”

(emphasis supplied)

11. For what has been noticed hereinabove, the relevant principlesgoverning the adjudicatory process concerning proof of Will could bebroadly summarised as follows:–

1. Ordinarily, Will has to be proved like any other document; thetest to be applied being the usual test of the satisfaction of theprudent mind. Alike the principles governing the proof of otherdocuments, in the case of Will too, the proof with mathematicalaccuracy is not to be insisted upon.

2. Since as per Section 63 of the Succession Act, Will is requiredto be attested, it cannot be used as evidence until at least oneattesting witness has been called for the purpose of proving its

[2020] 6 S.C.R.

execution, if there be an attesting witness alive and capable ofgiving evidence.

3. The unique feature of Will is that it speaks from the death ofthe testator and, therefore, the maker thereof is not available fordeposing about the circumstances in which the same was executed.This introduces an element of solemnity in the decision of thequestion as to whether the document propounded is the last Willof the testator. The initial onus, naturally, lies on the propounderbut the same can be taken to have been primarily discharged onproof of the essential facts which go into the making of Will.

4. The case in which the execution of the Will is surrounded bysuspicious circumstances stands on different footing. Thepresence of suspicious circumstances makes the onus heavier onthe propounder and, therefore, in cases where the circumstancesattendant upon the execution of the document give rise to suspicion,the propounder must remove all legitimate suspicions before thedocument can be accepted as the last Will of the testator.

5. If person challenging the Will alleges fabrication or allegesfraud, undue influence, coercion et cetera in regard to theexecution of the Will, such pleas have to be proved by him, buteven in the absence of such pleas, the very circumstancessurrounding the execution of the Will may give rise to the doubt oras to whether the Will had indeed been executed by the testatorand/or as to whether the testator was acting of his own free will.In such eventuality, it is again part of the initial onus of thepropounder to remove all reasonable doubts in the matter.

6. circumstance is “suspicious” when it is not normal or is ‘notnormally expected in normal situation or is not expected of anormal person’. As put by this Court, the suspicious features mustbe ‘real, germane and valid’ and not merely the ‘fantasy of thedoubting mind.’

7. As to whether any particular feature or set of features qualifyas “suspicious” would depend on the facts and circumstances ofeach case. shaky or doubtful signature; feeble or uncertainmind of the testator; an unfair disposition of property; an unjustexclusion of the legal heirs and particularly the dependants; an

active or leading part in making of the Will by the beneficiarythereunder et cetera are some of the circumstances which maygive rise to suspicion. The circumstances above-noted are onlyillustrative and by no means exhaustive because there could beany circumstance or set of circumstances which may give rise tolegitimate suspicion about the execution of the Will. On the otherhand, any of the circumstance qualifying as being suspicious couldbe legitimately explained by the propounder. However, suchsuspicion or suspicions cannot be removed by mere proof of soundand disposing state of mind of the testator and his signature coupledwith the proof of attestation.

8. The test of satisfaction of the judicial conscience comes intooperation when document propounded as the Will of the testatoris surrounded by suspicious circumstance/s. While applying suchtest, the Court would address itself to the solemn questions as towhether the testator had signed the Will while being aware of itscontents and after understanding the nature and effect of thedispositions in the Will?

9. In the ultimate analysis, where the execution of Will is shroudedin suspicion, it is matter essentially of the judicial conscience ofthe Court and the party which sets up the Will has to offer cogentand convincing explanation of the suspicious circumstancessurrounding the Will.

SUSPICIOUS CIRCUMSTANCES/FEATURES CONCERNINGTHE WILL IN QUESTION

12. Having considered the present matter in its totality while keepingthe principles aforesaid in view, we have not an iota of doubt that theHigh Court has examined the matter in its correct perspective and therehad been substantial and material reasons for which, the decision of theTrial Court could not have been upheld; and the High Court has rightlyreversed the same.

13. In summation of the lengthy discussion of the Trial Court, itcould be noticed that some of the major factors which weighed with theTrial Court in rejecting the objections of the contesting defendants againstthe Will in question had been: (i) that the testator Sangappa was nothaving warmth of relations with defendant No. 1 and his family and wasnot willing to give anything to them; (ii) that even in the earlier Will of the

Ayear 1974, Sangappa had not bequeathed any property to the contestingdefendants; (iii) that the plaintiffs, the grand–nephews of testator’s wife,were residing with the testator; (iv) that the father of the plaintiffs wasassociated with the testator in his business and other dealings; (v) thatthe attesting witnesses were only the customers of the testator and wereBnaturally chosen as independent persons to stand as witnesses to theWill; (vi) that the Will in question was in possession of PW-8 and wasopened by him in the presence of Swamiji; and (vii) that PW-8 hadneither any animosity with the defendants nor was gaining anything fromthe Will.C13.1 As regards the discrepancies indicated by the defendants,the Trial Court took the view that mere misdescription of the propertywas of no effect, particularly when its identification was not in doubt;and for this very reason, the Trial Court found the blank spaces as regardsthe particulars of the property to be of no effect. As regards mentioningof past event as something to happen in future, the Trial Court foundDthat it had no adverse bearing on the validity of the Will because existenceof tenant in the property was not going to affect the rights of thetestator as also his legatees. As regards the statement in the Will aboutlikelihood of accident, the Trial Court observed that the reason for makingsuch recital was known to the testator alone. On the suspicious factorsEconcerning the document itself, the Trial Court observed that use of thesheets of paper of different colours could be attributed only to the typistwho was not known to propounders. The Trial Court further found thatthe inconsistency regarding the dates from the Hindi Calendar and EnglishCalendar were of no effect because the day of execution of the Willwas Monday, as stated by the witnesses. Further, the Trial Court foundFthat the making of signatures by the testator by different pens on differentpages was duly explained by the witness PW-4.

14. The High Court, on the other hand, felt dissatisfied with thedocument itself and found no explanation on record about numerousunnatural circumstances dilated upon and discussed by it in some of theGpassages extracted hereinbefore. Having examined the material placedon record, in our view, the observations and findings of the High Courtremain unexceptionable.

15. Taking up the document itself, it is not in dispute that the sameis carrying 5 typed pages on 3 different sheets of papers, which areH

definitely not of the same colour. It had been noticed by the Trial Courtas also by the High Court, and it remains indisputable, that the said papersare of different colours and have not been picked up from the samestack. Use of 3 different sheets of paper for typing document of Willrunning in 5 pages (with first and second paper being typed on bothsides) is, in any case, not normal action by normal person in normalcircumstances. True it is that this aspect could have been cleared onlyby the typist and the propounders are not expected to know the typist,particularly when they had not participated in execution and attestationof the document but, this circumstance is enough to indicate that thematter calls for closer scrutiny with due regard to all the surroundingfactors because, ordinarily, such document would be typed in one sittingand on the papers drawn from the same stack.

15.1. Proceeding further, another feature surfaces, which wasfound by the High Court (though not discussed by the Trial Court). Thisfeature is about the placement of the signatures of the testator on 3pages, where it is apparent that on the first and the last page, the distanceof signatures from the typewritten contents is excessive than usual ornatural. It is not in dispute that this feature also emanates from barelook at the document in question.

15.2. The aforementioned two features, by themselves, may notbe of material bearing but this much is clear that they stand atcontradistinction to the ordinary course of dealings and give rise tolegitimate suspicions about the genuineness of document. Now, thesuspicion arising from the aforesaid two features is confounded byanother factor that though the document carries 3 signatures of thetestator, the same are not made from the same pen. It has been noticed,and again it remains indisputable, that while the signature of the testatorat page number 1 are from an ink pen, that at page number 3 is from aballpoint pen and then, again at page number 5, it is from an ink pen. Thewitness PW-4 has attempted to say that for the ink pen being not workingproperly, ballpoint pen was used. It sounds utterly unnatural and remainsinexplicable that if the ink pen was not working and the second signaturewas made from ballpoint pen, as to how and why the third signature,that is, the last one, was again made from another ink pen? It had notbeen the explanation of the attesting witnesses that after making thesignature at page number 3, the ballpoint pen also stopped working and,therefore, another ink pen was used for making the third signature. We

Amay observe that even when the possibility of the testator using differentpens or instruments for his signatures on different pages of the samedocument is not ruled out altogether and even this fact, by itself, may notbe decisive of the matter but, this much is certain that such happeningcannot be categorised as normal or natural in the course of execution ofBa document of Will.

15.3. Therefore, in the present case, three features of the documentEx. P.4, carrying unusual characteristics of their own, manifest themselveson the face of the record and nothing but bare look at the document issufficient to notice them. The aforesaid three unnatural and unusualCfeatures of the document in question, where different sheets of paperhave been used; where placement of the signatures of the testator atleast at two places is beyond normal distance from the last typed matter;and where in making of three signatures, at least two different penswere used, make it clear that deeper probe is called for to find as towhether this document could at all be accepted as the last Will of theDtestator.

15.4. When the exploration is pushed slightly further, another majorfeature comes to the fore, which has been noticed by the High Court butwhich escaped the attention of the Trial Court altogether. The documentin question is said to be Will running in 5 pages which is typed (inEkannada script) on 3 sheets of papers with the first and second sheetscarrying the typewritten contents on both sides; page number 2 beingtyped on the backside of page number 1 and page number 4 being typedon the backside of page number 3. The significant feature is that pagenumber 2 and page number 4 of this document Ex. P.4 do not carry anyFsignature at all!

15.4.1. It is apparent on the face of the record that even when thefront facing pages i.e., page numbers 1, 3 and 5 carry the signatures ofthe testator, the backside pages i.e., page number 2 and page number 4are not signed at all and have gone unsigned. When this material aspectGis added to the above-referred three unusual features, the probative valueof this document Ex. P.4 is shaken to the core and it becomes seriousquestion as to whether this document could be considered to be Willthat was got typed and signed by the testator in the presence of thealleged attesting witnesses.

15.4.2. In relation to this aspect of want of signatures of thetestator on page number 2 and page number 4, we may also observethat as per the requirement of clause (b) of Section 63 of the SuccessionAct, the signature or mark of the testator is to be so placed that it shallappear that by such signature or mark, the intention was to give effect tothe writing as Will. Of course, when no specific form of making Willis provided, in given case, depending on the relevant facts andcircumstances, document drawn on several sheets but carryingsignature only at the end may also be accepted as genuine Will wherethe document was authenticated by only one signature. However, thescenario like the present one, where the executant had purportedly signed3 out 5 typewritten pages while omitting to sign the other 2, definitelystands at contradistinction to the dealing of any normal person in normalway. When the signatures of the testator are indeed available on pagenumbers 1, 3 and 5, it is difficult to find any plausible explanation for hisomission to sign at page number 2 and page number 4 of the samedocument. The only explanation could be that the testator chose to signthe front face of each paper and did not consider it necessary to sign onthe backside of the paper. However, accepting such frail explanation,and that too in the face of other unusual features (as noticed hereinbefore),would tantamount to thrusting the probative value into the documentwhile ignoring everything that is incongruous to, and incompatible with,the normal course of happenings.

15.4.3. The indisputable fact that page number 2 and page number4 of the document in question (EX. P.4) do not carry the signatures ofthe testator whereas other pages do carry his signatures, in our view,places the document in conflict with, or at least non-compliant with, therequirement of clause (b) of Section 63 of the Succession Act. Thedocument in question could be rejected outright for this reason alone.However, having regard to the circumstances of the case, it would beappropriate to deal with other factual aspects concerning the documentin question before reaching to the final conclusion.

15.5. The discussion thus far makes it clear that at least fourunusual features of the document in question are evident on the face ofthe record. To recapitulate, the disturbing unusual features of thedocument in question are that: (i) it is typewritten on 3 different sheetsof paper; (ii) the placement of signatures of the testator is not of uniformity

Aand excessive space is seen between the typewritten contents and thesignatures on page number 1 and page number 5; (iii) different penshave been used for signatures on different pages with ink pen havingbeen used for first and third signatures (on page number 1 and pagenumber 5) and ballpoint pen having been used for the second signature(on page number 3); and (iv) all the typewritten pages do not carry theBsignatures of the testator, with there being no signature on page number2 and page number 4. It does not require any great deal of elaborationthat in the ordinary, normal and usual course, such typewritten documentis expected to be on the sheets of paper drawn from the same stack;there would be reasonable uniformity in placement of the signaturesCrunning through the document and every signature would be placedalongside or at reasonable distance from the contents; single pen orinstrument would be used for signing at all places; and, ordinarily, makerof the Will would not leave such ambiguity in expression of his intentionas would arise by his signing 3 pages and not signing 2 other pages of thesame document. In fact, in the normal and ordinary course of dealing,Dthe maker of Will is least expected to leave any page of the documentunsigned. Although existence of some such unusual features (as noticedabove) cannot be ruled out during the course of typing and signing of thedocument but when all such unusual features combine together, thedocument becomes too vulnerable and cannot be readily accepted as aEgenuine document.

16. While proceeding further, we may usefully reiterate theprinciples relating to the examination of document propounded as Willthat the document is not approached with doubts but is examinedcautiously and with circumspection. For what has been noticedFhereinabove, the document in question carries several such features ofunusualness which travel into the realm of abnormalities. The matterdoes not rest with such abnormalities only. These abnormal features getconfounded with other unusual features available in the contents of thisdocument. Indisputably, several blank spaces are found in relation to the

particulars of the properties and even some of the properties are notGcorrectly described. Yet further, the dates mentioned in the documentwith reference to Hindi Calendar and English Calendar do not match.Yet another curious feature is the recital in the document of past event(about vacating of the shop by the tenant in the year 1990) in the mannerthat such event shall happen in future. Therefore, the abnormalities relatingH

to paper, pen and signature get magnified with blank spaces in thedocument as also with incorrect and inexplicable recitals.

17. The problems relating to the probative value of the documentEx. P.4 do not end with the aforementioned abnormal features and curiousfactors. close examination of this document takes us from abnormalitiesto mysteries too. In the opening passage of this document, the recital isto the effect that the testator was making the Will because so manyaccidents do happen. The fact remains that the testator and his wifeboth died in the car accident on 20.05.1994 but, it would require travellinginto an entirely mystical region to accept that while making the Will on20.05.1991, the testator had the premonition that he would perish in avehicular accident.

18. As noticed, even when fishing enquiry with digging of thefaults and lacuna is not to be resorted to while examining Will but, andat the same time, the real and valid suspicions which arise because ofanything standing beyond normal happening or conduct cannot be ignoredeither. Ignoring or brushing aside all the features noticed in relation tothe document in question would require taking up an individual featureand ignoring it as being trivial or minor and then, proceeding with thebelief that it had only been matter of chance that all the abnormalitiessomehow chose to conglomerate into this one document. Such anapproach would, obviously, be detached from realities and cannot beadopted. It needs hardly any emphasis that examination of documentpropounded as Will has to be on the norms of reality as also normalcy;and the overall effect of all the features and circumstances is requiredto be examined.

19. When all the aforesaid abnormal, curious and rather mysteriouscircumstances are put together, the inescapable conclusion is that thedocument in question cannot be accepted as the last Will of the testator.The unexplained, unusual and abnormal features pertaining to thedocument only lead to the logical deduction that the document in questionwas prepared after the demise of the testator with use of blank signedpapers that came in possession of the propounders and their associates.The High Court has stated such deduction after thorough examinationof the material on record and, in our view, rightly so. It is noticed that allthe features and factors indicated hereinabove are very much available

Aon the face of the record. However, the Trial Court, even while dealingwith several contentions in excessive details, either failed to notice someof the features indicated above or simply brushed aside the particularfeature carrying abnormality with the observations to the effect that thepropounders were not to be expected to remove the suspicions concerningBthe document when they had no role in its execution. The Trial Courthaving, obviously, misdirected itself on several of the key and pivotalfactors, its decision could not have been approved.

19.1. It is sought to be contented on behalf of the appellants thatusing of blank papers had not been the objection taken by the defendants.CThe contention remains bereft of substance for the simple reason thatthe defendants indeed asserted that the document in question was afabricated one. The likelihood of it being drawn on the available blankpapers with signatures of the testator is nothing but deduction thatlogically comes out of the examination of the document in question.

D20. Much emphasis is laid on behalf of the appellants on thesubmissions that execution of the Will in accordance with the requirementsof Section 63 of the Succession Act and Section 68 of the Evidence Acthas been duly established on record with the testimony of the attestingwitnesses as also the witness with whom the Will along with thehandwritten draft of the Will had been deposited by the testator. TheEsubmissions so made on behalf of the appellants cannot be accepted forthe reason that mere proof of the document in accordance with therequirements of Section 68 of the Evidence Act is not final and conclusivefor acceptance of document as Will. When suspicious circumstancesexist and the suspicions have not been removed, the document in questionFcannot be accepted as Will.

21. Even the aspect suggested on behalf of the plaintiffs and theirwitnesses that the document in question (Ex. P.4) was drawn up as aWill and was placed in sealed cover with the handwritten draft (Ex.P.3) has its own shortcomings and the share of abnormalities. It remainsGindisputable that the said draft (Ex. P.3) had remained incomplete. Itmay be assumed that the same was being drawn up by the testator in hisown handwriting for finally making his last Will after he had revoked theearlier Will but, it had remained incomplete draft only. If the testatorhimself had got his Will typed and then, took care to have it executed in

the presence of 4 attesting witnesses; and if he intended such executeddocument to operate as his Will; and also had the intention that his Willbe kept in sealed cover to be opened before Swamiji, in the ordinarycourse of dealings, it was least expected of him to put the said incompletedraft also in the envelope because placing of such incomplete draft couldhave only created confusion in regard to the actual Will, if there wereany. Taking an overall view of the matter, the preponderance of probabilityis only to the effect that the entire story about execution of Will by thedeceased Sangappa has been cooked up with use of readily availablesigned papers (though of different sheets of paper and with signatureswith different instruments) and, in order to suggest some authenticity,the story of sealed envelope and leaving of the same with PW-8 wassought to be inserted. This feature only operates against the plaintiffswhere it carries another unexplained unusualness.

22. The Trial Court had largely been swayed by the fact that thedeceased Sangappa was not inclined to give any property to the defendantNo. 1 and his family as had been the case of the earlier Will executed byhim in the year 1974. Admittedly, the said Will of the year 1974 wascancelled by Shri Sangappa on 26.09.1990. He perished in the vehicularaccident on 20.05.1991. Whether he intended to bequeath any propertyto the defendants or not is hardly of any bearing in relation to thesuspicious circumstances noticed above.23. Having dilated on various major features which, individuallyand cumulatively, lead only to the conclusion that the document in questioncannot be accepted to be the last Will of late Shri Sangappa, it does notappear necessary to discuss several other shortcomings in the case ofthe plaintiffs, including various other factors like that the plaintiffs nevertook steps to get the statement of the said Swamiji recorded, who wasotherwise referred to by all the material witnesses as being the personbefore whom the document was allegedly opened.

24. In our view, the document in question falls flat at the very firstquestion indicated in the case of H. Venkatachala Iyenger (supra) thatis, as to whether the testator signed the Will in question. The answer tothis question is only in the negative. This is apart from the fact that thedocument in question, propounded as Will, is non-compliant with therequirements of clause (b) of Section 63 of the Succession Act.

714SUPREME COURT REPORTS

A24.1. In the ultimate analysis, we are satisfied that the High Courtwas right in reversing the decision of the Trial Court and in holding thatthe contested Will was not genuine document.

WHETHER REMAND WAS CALLED FOR

25. Taking up the other point for determination, the submission ofBlearned counsel for the appellants that the High Court ought to haveconsidered remanding the case by taking recourse to the provisioncontained in Order XLI Rule 23A CPC, in our view, remains totallybereft of substance; this submission has only been noted to be rejected.

25.1. The procedure relating to appeals from original decreesC(usually referred to as ‘regular first appeal’) is provided in Order XLI ofthe Code of Civil Procedure, 1908 and therein, various provisions relatingto hearing of an appeal, remand of case, remitting of issues for trial,production of additional evidence in Appellate Court etc. are containedin Rules 16 to 29 under the sub-heading ‘Procedure on hearing’. For

Dtheir relevance, we may take note of the provisions contained in Rules23, 23A, 24 and 25 of Order XLI CPC as follows: -

“23. Remand of case by Appellate Court.- Where the Courtfrom whose decree an appeal is preferred has disposed of thesuit upon preliminary point and the decree is reversed in appeal,Ethe Appellate Court may, if it thinks fit, by order remand the case,and may further direct what issue or issues shall be tried in thecase so remanded, and shall send copy of its judgment andorder to the Court from whose decree the appeal is preferred,with directions to re- admit the suit under its original number inthe register of civil suits, and proceed to determine the suit; andFthe evidence (if any) recorded during the original trial shall, subjectto all just exceptions, be evidence during the trial after remand.

23A. Remand in other cases.- Where the Court from whosedecree an appeal is preferred has disposed of the case otherwisethan on preliminary point, and the decree is reversed in appealGand re-trial is considered necessary, the Appellate Court shallhave the same powers as it has under rule 23.

24. Where evidence on record sufficient, Appellate Courtmay determine case finally.- Where the evidence upon the recordis sufficient to enable the Appellate Court to pronounce judgment,

the Appellate Court may, after resettling the issues, if necessary,finally determine the suit, notwithstanding that the judgment ofthe Court from whose decree the appeal is preferred has proceededwholly upon some ground other than that on which the AppellateCourt proceeds.

25. Where Appellate Court may frame issues and refer themfor trial to Court whose decree appealed from.-Where theCourt from whose decree the appeal is preferred has omitted toframe or try any issue, or to determine any question of fact, whichappears to the Appellate Court essential to the right decision ofthe suit upon the merits, the Appellate Court may, if necessary,frame issues, and refer the same for trial to the Court fromwhose decree the appeal is preferred, and in such case shall directsuch Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall returnthe evidence to the Appellate Court together with its findingsthereon and the reasons therefor within such time as may be fixedby the Appellate Court or extended by it from time to time.”

25.2. Rule 23A came to be inserted in Order XLI CPC by way ofthe Code of Civil Procedure (Amendment) Act, 1976. Prior to thisamendment, it was generally accepted by the Courts that although underRule 23, an order of remand could be made only on reversal of decreedisposing of suit on preliminary point but, the Appellate Court has theinherent power of remanding case where it was considered necessaryto do so in the interest of justice. Some of the High Courts had madesimilar provisions by way of their respective amendments. Insertion ofRule 23A in Order XLI by the Amending Act of 1976 makes it explicitthat even when the suit has been disposed of otherwise than on apreliminary point and the decree is reversed in appeal, the AppellateCourt shall have the power of remand, if re-trial is considerednecessary.[8]

8 Such powers of remand, as provided in Rules 23 and 23A of Order XLI, are differentthan the power of the Appellate Court to remit an issue for findings under Rule 25. Thepower of remitting is ordinarily to be resorted to when the Trial Court has omitted totry any material issue or to determine any question of fact. In other words, the properprocedure in case where the Trial Court, while disposing of the suit on merits, hadfailed to determine one or more of the material issues/questions, is to remit the issue/question(s) under Rule 25 and not to remand the whole case for re-trial. Ordinarily, in

A25.3. comprehension of the scheme of the provisions for remandas contained in Rules 23 and 23A of Order XLI is not complete withoutreference to the provision contained in Rule 24 of Order XLI that enablesthe Appellate Court to dispose of case finally without remand if theevidence on record is sufficient; notwithstanding that the Appellate Courtproceeds on ground entirely different from that on which the TrialBCourt had proceeded.

25.4. conjoint reading of Rules 23, 23A and 24 of Order XLIbrings forth the scope as also contours of the powers of remand thatwhen the available evidence is sufficient to dispose of the matter, theproper course for an Appellate Court is to follow the mandate of Rule 24Cof Order XLI CPC and to determine the suit finally. It is only in suchcases where the decree in challenge is reversed in appeal and re-trialis considered necessary that the Appellate Court shall adopt the courseof remanding the case. It remains trite that order of remand is not to bepassed in routine manner because an unwarranted order of remandDmerely elongates the life of the litigation without serving the cause ofjustice. An order of remand only on the ground that the points touchingthe appreciation of evidence were not dealt with by the Trial Court maynot be considered proper in given case because the First AppellateCourt itself is possessed of jurisdiction to enter into facts and appreciatethe evidence. There could, of course, be several eventualities whichEmay justify an order of remand or where remand would be rathernecessary depending on the facts and the given set of circumstances ofa case.

25.4.1. The decision cited by the learned Counsel for the appellantsin the case of Mohan Kumar (supra) is an apt illustration as to whenFthe Appellate Court ought to exercise the power of remand. In the saidcase, the appellant and his mother had filed the civil suit against theGovernment and local body seeking declaration of title, perpetual injunctionand for recovery of possession in respect of the land in question. The

the case of an order under Rule 25 of Order XLI, the matter is retained on the file of theGAppellate Court and only the issue/question(s) are remitted to the Trial Court forfindings. On the other hand, when an order of remand is made under Rule 23 or Rule23A, the whole case goes back for decision to the Trial Court except on the point onwhich the Appellate Court has returned concluded finding, if any. While making aremand under Rule 23 or Rule 23A, the judgment and decree of the Trial Court isrequired to be set aside but it is not necessary to set aside the impugned judgment andHdecree when taking recourse to Rule 25 of Order XLI.Trial Court partly decreed the suit while holding that the plaintiffs werethe owners of the land in dispute on which trespass was committed bythe respondents and they were entitled to get the encroachment removed;and it was also held that the Government should acquire the land andpay the market value of the land to the appellant. Such part of the decreeof the Trial Court was not challenged by the defendants but as againstthe part of the decision of the Trial Court which resulted in rejection ofthe claim of the appellant for allotment of an alternative land, the appellantpreferred an appeal before the High Court. The High Court not onlydismissed the appeal so filed by the appellant but proceeded to dismissthe entire suit with the finding that the plaintiff-appellant had failed toprove his ownership over the suit land inasmuch as he did not examinethe vendor of his sale deed. In the given circumstances, this Courtobserved that when the High Court held that the appellant was not ableto prove his title to the suit land due to non- examination of his vendor,the proper course for the High Court was to remand the case to the TrialCourt by affording an opportunity to the appellant to prove his title byadducing proper evidence in addition to what had already been adduced.Obviously, this Court found that for the conclusion reached by the HighCourt, case for re-trial was made out particularly when the Trial Courthad otherwise held that the appellant was owner of the land in disputeand was entitled to get the encroachment removed as also to get themarket value of the land. Such cases where re- trial is considerednecessary because of any particular reason and more particularly forthe reason that adequate opportunity of leading sufficient evidence to aparty is requisite, stand at entirely different footings than the cases whereevidence has already been adduced and decision is to be rendered onappreciation of evidence. It also remains trite that an order of remand isnot to be passed merely for the purpose of allowing party to fill- up thelacuna in its case.

25.5. It gets perforce reiterated that the occasion for remandwould arise only when the factual findings of Trial Court are reversedand re-trial is considered necessary by the Appellate Court.

25.6. The present case had clearly been the one where the partieshad adduced all their evidence, whatever they wished to; and it had notbeen the case of the plaintiff-appellants that they were denied anyopportunity to produce any particular evidence or if the trial was vitiatedbecause of any alike reason. As noticed, there had been several suspicious

ABC

Acircumstances surrounding the Will in question, some of which werenoticed by the Trial Court but were brushed aside by it on untenablereasons. The High Court has meticulously examined the same evidenceand the same circumstances and has come to different conclusion thatappears to be sound and plausible, and does not appear suffering fromBany infirmity. There was no reason or occasion for the High Court toconsider remanding the case to the Trial Court. The contention in thisregard is required to be, and is, rejected.

CONCLUSION

26. For what has been discussed hereinabove, we are satisfiedCthat the High Court has rightly interfered with the decision of the TrialCourt and has rightly held that the document in question cannot beaccepted as the genuine Will of the deceased Sangappa; and there wasno reason for the High Court to remand the case to the Trial Court.

27.Accordingly, and in view of the above, this appeal fails and is,Dtherefore, dismissed while leaving the parties to bear their own coststhroughout.

Ankit Gyan

Appeal dismissed.