MURTHY & ORS. versus C. SARADAMBAL & ORS.

[2021] 14 S.C.R. 836

[2021] 14 S.C.R.

MURTHY & ORS.

C. SARADAMBAL & ORS.

(Civil Appeal No. 4270 of 2010)

BDECEMBER 10, 2021

[L. NAGESWARA RAO AND B. V. NAGARATHNA, JJ.]

Will: Suspicious circumstances in execution of will – Bequestmade in the name of testator’s son to the exclusion of testator’sdaughters – Testator’s son lived for eleven years after the death ofCtheir father – Petition seeking Letters of Administration filed fifteenyears after the death of the testator by wife of testator’s son –Daughters of testator defendants sought for dismissal of the petitionon the ground that the will was fabricated – Held: It is highlyimprobable that the only son of the testator who was practicingDadvocate and on whom the bequest of the house was made, wasunaware of the execution of the will by his father – It is unnaturalthat the father would not have disclosed to his only son about thebequest of the property and had also not taken his son’s assistancein the drafting as well as execution of the will – The testator hadsuffered paralytic stroke which had affected his speech, mobilityEof his right arm and right leg and he was bedridden for period often months prior to his death – Taking these circumstances intoconsideration, doubt is created as to whether the testator was in asound and disposing state of mind at the time of making of thetestament which was fifteen days prior to his death – The saidFsuspicion in the mind of the Court has not been removed by thepropounder of the will i.e. first plaintiff by producing any contramedical evidence or the evidence of the doctor who was treatingthe testator prior to his death – Testator had himself stated in thealleged will that he was sick and getting weak even then he is statedto have “written” the will himself which is not believable – s.63 ofGthe Succession Act, 1925 categorically states that the testator hasto sign on the will and the signature of the testator must be suchthat it would “intend” thereby to give effect to the writing of will– Hence, the genuineness of the will must be proved by proving theintention of the testator to make the testament and for that, all stepsHwhich are required to be taken for making valid testament must be

proved by placing concrete evidence before the Court – There is noevidence as to whom the testator gave instructions to write the will– The scribe was also not examined – In order to prove the executionof the document such as testament, at least one of the attestingwitnesses who had attested the same must be called to give evidencefor the purpose of proof of its execution – One attestor had died –The second attestor, PW2 had given his evidence – PW2 deposedthat the will could not be registered as the testator was unwell andin fact, he was bedridden – His deposition was rather fatal to thecase of the beneficiary of the Will – Trial Court had also not believedthe evidence of PW2 – Respondents-plaintiffs were not successfulin proving the validity of the will in accordance with law inasmuchas the suspicious circumstances surrounding the very execution ofthe will were not cleared by any cogent evidence, rather, thegenuineness of will remained in doubt – The alleged Will not being avalid document in the eye of law, no Letters of Administration can begranted to the respondents-plaintiffs – Succession Act, 1925 – s.63.Judgment/Order: Reasoned order – Duty of Appellate courtwhile affirming, modifying or reversing the judgment of lower court– Held: The Appellate Court has jurisdiction to reverse, affirm ormodify the findings and the judgment of the Trial Court – However,while reversing or modifying the judgment of Trial Court, it is theduty of the Appellate Court to reflect in its judgment, consciousapplication of mind on the findings recorded supported by reasons,on all issues dealt with, as well as the contentions put forth, andpressed by the parties for decision of the Appellate Court – Nodoubt, when the Appellate Court affirms the judgment of TrialCourt, the reasoning need not to be elaborate although re-appreciation of the evidence and reconsideration of the judgmentof the Trial Court are necessary concomitants – But while reversinga judgment of Trial Court, the Appellate Court must be moreconscious of its duty in assigning the reasons for doing so – In theinstant case, High Court has dealt with the judgment of the TrialJudge in short cut method, bereft of all reasoning while reversingthe judgment of the Trial Court both on facts as well as law.

Judgment/Order: Duty of Appellate court, while reversing thejudgment of lower court – Held: While writing judgment ofreversal, an Appellate Court must remain conscious of two principles– Firstly, the findings of facts based on conflicting evidence arrived

Aat by the Trial Court must weigh with the Appellate Court, more sowhen the findings are based on oral evidence recorded by the samePresiding Judge who authors the judgment – If, on an appraisal ofthe evidence, it is found that the judgment of the Trial Court suffersfrom material irregularity or is based on inadmissible evidence oron conjectures and surmises, the Appellate Court is entitled toBinterfere with the finding of fact but by assigning cogent reasonsfor doing so – Otherwise, the findings of the Trial Court should notbe interfered with lightly on question of fact – Secondly, whilereversing finding of fact, it is necessary that the Appellate Courtassigns its own reasons for doing so – This is especially so in caseCthere are further appeals under s.100, CPC, as the first AppellateCourt is the final court of facts and the said findings are immunefrom challenge in second appeal.

Appeal: Right to file appeal – Held: Right to appeal is acreature of statute – The right to file an appeal by an unsuccessfulDparty assailing the judgment of the Original Court is valuableright and hence duty is cast on the Appellate Court to adjudicatea first appeal both on questions of fact and applicable law – Hence,the re-appreciation of evidence in light of the contentions raised bythe respective parties and judicial precedent and the law applicableto the case have to be conscientiously dealt with.E

Allowing the appeal, the Court

HELD: 1. The respondents-plaintiffs have failed to provethe will (Ex-P1) in accordance with law inasmuch as they havenot removed the suspicious circumstances, surrounding theFexecution of the will. Hence, Ex-P1, not being valid documentin the eye of law, no Letters of Administration can be granted tothe respondents-plaintiffs. The Trial Judge was right in dismissingthe suit. However, the Appellate Court being the Division Benchhas reversed the judgment and decree passed by the Trial Courtand has decreed the suit. The judgment of the Appellate CourtGwas written in cryptic manner. It is observed that the judgmentcould be brief and succinct if the Appellate Court is to dismiss anappeal and affirm the judgment and decree of the Trial Court.But when the judgment and decree of the Trial court is to bereversed then it is incumbent upon the Appellate Court to dwellHinto the matter in detail and to give reasons for reversing thesame. Assigning reasons not only makes the judgmentwholesome, but is also necessary in order to deduce and lead tojust conclusions. The High Court has dealt with the judgment ofthe Trial Judge in short cut method, bereft of all reasoningwhile reversing the judgment of the Trial Court both on facts aswell as law. It is trite that the Appellate Court has jurisdiction toreverse, affirm or modify the findings and the judgment of theTrial Court. However, while reversing or modifying the judgmentof Trial Court, it is the duty of the Appellate Court to reflect inits judgment, conscious application of mind on the findingsrecorded supported by reasons, on all issues dealt with, as wellas the contentions put forth, and pressed by the parties fordecision of the Appellate Court. No doubt, when the AppellateCourt affirms the judgment of Trial Court, the reasoning neednot to be elaborate although reappreciation of the evidence andreconsideration of the judgment of the Trial Court are necessaryconcomitants. But while reversing judgment of Trial Court,the Appellate Court must be more conscious of its duty inassigning the reasons for doing so. [Paras 35, 36, 37][859-E-H;860-A-D]

2. The right to file an appeal by an unsuccessful partyassailing the judgment of the Original Court is valuable rightand hence duty is cast on the Appellate Court to adjudicate afirst appeal both on questions of fact and applicable law. Hence,the reappreciation of evidence in light of the contentions raisedby the respective parties and judicial precedent and the lawapplicable to the case have to be conscientiously dealt with. Inthe instant case, the Division Bench of the High Court has simplyreversed the judgment of the Trial Judge in the absence ofreappreciation of evidence and without giving findings onquestions of fact as well as on the applicable law and by notreasoning as to why the judgment of the Trial Judge waserroneous. [Paras 41, 42][862-B-D]

Santosh Hazari v. Purushottam Tiwari (deceased) byLRS (2001) 3 SCC 179; B.V. Nagesh v. H.V. SreenivasaMurthy (2010) 13 SCC 530 : [2010] 11 SCR 784; VinodKumar v. Gangadhar (2015) 1 SCC 391 : [2014] 10SCR 1050 – relied on.

AH.Venkatachala Iyenger vs. B.N.Thimmajamma AIR1959 SC 443 : [1959] Suppl. SCR 426; Jaswant Kaurv. Amrit Kaur and others (1977) 1 SCC 369 : [1977] 1SCR 925; Bharpur Singh and others v. Shamsher Singh(2009) 3 SCC 687 : [2008] 17 SCR 517; NaranjanUmeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13BSCC 433 : [2006] 10 Suppl. SCR 1214; Anil Kak v.Sharada Raje (2008) 7 SCC 695 : [2008] 6 SCR 1009;Leela Rajagopal and others v. Kamala MenonCocharan and others, (2014) 15 SCC 570 : [2014] 7SCR 697 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4270of 2010.F

From the Judgment and Order dated 08.12.2008 of the High Courtof Judicature at Madras in O.S.A. No.470 of 2002.

S. Vallinayagam, Rutwik Panda, Advs. for the Appellants.

K. K. Mani, Ms. T. Archana, Advs. for the Respondents.

GThe Judgment of the Court was delivered by

NAGARATHNA J.

This appeal assails the judgment and decree dated 08[th] December,2008 passed by the High Court of Judicature at Madras, in O.S.A. No.H470 of 2002 by which the judgment and decree passed in T.O.S. No. 20

of 1994, wherein the learned Trial Judge of the High Court had dismissedthe suit for grant of Letters of Administration, was set aside and the saidsuit was decreed.

2. For the sake of convenience, the parties shall be referred to interms of their status in O.P. No. 150 of 1993 which was converted toT.O.S. No. 20 of 1994, which was filed for grant of Letters ofAdministration.

3. It is the case of the plaintiffs that E. Srinivasa Pillai, father-in-law of the 1[st] plaintiff, had died on 19[th] January, 1978 leaving behind hislast will and testament dated 04[th] January, 1978. The said will was saidto be executed in the presence of two attestors. The testator E. SrinivasaPillai had son, named S. Damodaran, who died intestate on 03[rd] June,1989 at Madras, leaving behind the plaintiff-wife C. Saradambal and histwo daughters viz., D. Prema, aged 20 years and D. Deepalakshmi,aged 18 years. The testator, apart from his son, S. Damodaran, leftbehind two daughters viz., Savitri Ammal, wife of P. M. Elumalai andPadmavathi, wife of T. Rajaram.

4. The bequest was made in the name of testator’s son viz., S.Damodaran to the exclusion of the testator’s daughters in respect of thehouse in which the testator and his family were residing, situated atPremises No.10, Azeez Nagar II Street, Kodambakkam, Madras-24.The daughters of the testator had filed O.S. No. 5477 of 1990 on the fileof IV Assistant City Civil Judge Court, Madras seeking partition of thesaid property. Therefore, it had become necessary for the plaintiffs tofile the petition seeking Letters of Administration.

5. Plaintiff-C.Saradambal averred that she would undertake toduly administer the estate of the deceased as per the will by paying thetestator’s debts and legacies and by making full and true inventorythereof and exhibit the same in the Court.

6. The daughters of the testator contested the said testament byfiling written statement. They averred that the will was fabricated andthe signature of the testator in the said document was forged and thesame was got-up document by the plaintiff with the help of her husband’sfriends who were the attesting witnesses of the will. It averred that theattestors of the will had no association with the deceased testator, E.Srinivasa Pillai. The defendants contended that they looked after theirfather when he was on his deathbed. It was further contended that

Adeceased testator E. Srinivasa Pillai had paralytic attack and was unableto write or move. It was urged that the will had to be proved in accordancewith law by removing all suspicious circumstances in connection withthe execution of the same, to the satisfaction of the conscience of theCourt. It was contended that the defendants had been deprived of intestatesuccession on account of the fraudulent and forged will.B

7. The defendants averred that their father died on 19[th] January,1978, that their mother had predeceased him and their brother had alsodied in 1989. The defendants also averred that the first plaintiff got marriedto the brother of defendants on 07[th] June, 1970. The second and thirdplaintiffs were the daughters born out of the said wedlock. The firstCplaintiff willfully deserted her husband and had also filed MatrimonialPetition bearing No. 136 of 1988, seeking dissolution of her marriage, bya decree of divorce but since defendants’ brother died on 03[rd] June,1989, the said petition for dissolution of marriage became infructuous.The defendants contended that the first plaintiff never cared for theirDbrother. It was further contended that their brother, S. Damodaran hadlived for eleven years after the death of their father and he had neverdisclosed about the execution of the will by their father.

8. The defendants had issued legal notice dated 22[nd] June, 1989to the plaintiff for partition and separate possession of their two-thirdEshare in the scheduled property and after waiting for period of two anda half months, they had filed suit for partition and separate possessionof the said two-third share of the property.

9. It was further averred that the testator, E. Srinivasa Pillai wascompletely bedridden, incapable of writing and understanding anythingFfor period of ten months prior to his death. The name of the witnessesand the name of the person who had drafted the will were neverdisclosed. It was further averred that the testator E. Srinivasa Pillai wasworking in Binny and Company, Madras and was associated with well-educated and respectable people. That the petition seeking Letters ofAdministration was filed fifteen years after the death of the testator.GHence, the defendants sought for dismissal of the petition seeking Lettersof Administration.

10. Having regard to the objections raised by the defendants, thePetition was converted into Testamentary Original Suit being T.O.S.No. 20 of 1994.H

11. The learned Trial Judge on the basis of the pleadings, framedthe following issues for consideration:

“(1) Whether the will was executed by the testator while in asound and disposing state of mind? And

(2) To what relief are the parties entitled?”

12. The learned Trial Judge dismissed the suit by judgment anddecree dated 14[th] January, 2000 by answering the aforesaid issues againstthe plaintiffs.

13. Being aggrieved by the impugned judgment and decree passedby learned Trial Judge, the plaintiffs preferred an appeal being O.S.A.No. 470 of 2002 before the High Court. The Division Bench videimpugned judgment and decree dated 8[th] December, 2008, allowed theappeal and decreed the suit. Hence this appeal.

14. We have heard Mr. S. Vallinayagam, learned counsel for theappellants, Sri K. K. Mani, learned counsel for the respondents andperused the material on record.

15. Learned counsel for the appellants contended that the DivisionBench of the High Court was not right in reversing the judgment of thelearned Trial Judge of the said Court without assigning reasons for doingso and in that regard drew our attention to the impugned judgment. Itwas submitted that the learned Trial Judge had closely perused theevidence on record, both oral and documentary and had rightly dismissedthe suit. However, the Division Bench of the High Court in the absenceof any reasoning, had reversed the judgment of the learned Trial Judge.

16. It was next submitted that the testament, on the basis of whichthe respondents sought grant of Letters of Administration was concocted.The father of the appellants, namely, E. Srinivasa Pillai was bedriddenprior to his death as he had sustained paralytic stroke and was not in aposition to sign or write and neither was he in sound disposing state ofmind. The appellants contended that he could not have even thought ofmaking the bequest of the house in which he was residing, exclusively infavour of his son, S. Damodaran. They contended that the very executionof the will is shrouded in suspicious circumstances inasmuch as even thesignature found on the controversial document is not that of the testator.Elaborating on the same, it was urged that the respondents had placedreliance on Exs.P2 and P3 to demonstrate that the signature on the said

Adocuments tallied with the signatures of the testator on the will. However,even on cursory glance of the said signatures it is apparent that theydo not tally. It was submitted that the attempts of the respondents havebeen to knock off the house property as if it has been bequeathed to thehusband of respondent No.1 and the father of the respondent No.2 and3, to the exclusion of the appellants who are the daughters of theBdeceased testator. Elaborating the said contention, it was urged that thetestator died within period of fifteen (15) days after the so-calledexecution of the will i.e., 04[th] January, 1978 as the testator died on 19[th]January, 1978.

17. That the appellants herein had filed the suit for partition andCseparate possession of the house property being O.S. No.5477 of 1990before the IV Assistant City Civil Court, Madras and in order to defeatthe rights of the appellants herein in the house property, respondent No.1had concocted the will of E. Srinivasa Pillai. The said document is afabricated and forged document as it had not seen the light of the dayDfor over fifteen years after the death of the testator and the petitionseeking grant of Letters of Administration was filed only in order to seekthe imprimatur of the Court on the said document.

18. It was further contended that the attestors of the so-calledtestament were not known to the deceased testator, they are in factEknown to the first plaintiff i.e. respondent No.1 herein.

19. It was further urged that the very execution of the will issuspicious and therefore the learned Trial Judge had rightly dismissedthe suit of the respondents herein. However, the Appellate Court simplyreversed the judgment and decree passed by the learned Trial JudgeFwithout any reasoning. Hence, it was submitted that the impugnedjudgment and decree of the Division Bench of the Appellate Court maybe set aside and the judgment and decree of the learned Trial Judge maybe restored.

20. Per contra, learned counsel for the respondents-plaintiffs inGthe suit, drew our attention to the oral and documentary evidence onrecord and contended that the execution of the will had been proved inaccordance with Section 68 of the Indian Evidence Act, 1872 and Section63 of the Indian Succession Act, 1925. The Appellate Court wasconvinced about the factum of the execution of the will by the testatorE. Srinivasa Pillai and the fact that there were no suspiciousHcircumstances surrounding the execution of the will by the testator.

Therefore, the Appellate Court has rightly set aside the judgment anddecree of the Trial Court. Hence, the same may be confirmed.

21. We have given our thoughtful consideration to the rivalsubmissions made by the parties.

22. The question that arises for consideration is, whether, theAppellate Court was justified in setting aside the judgment and decreeof the learned Trial Judge, thereby allowing the appeal filed by theplaintiffs-respondents herein and consequently, decreeing the suit filedby them.

23. The relationship between the parties is not in dispute. DeceasedE. Srinivasa Pillai was the father of the husband of first plaintiff as wellas the father of defendants being the daughters. It is also not in disputethat the testator died on 19[th] January, 1978. The controversy here is withregard to the succession to his estate. If he had died intestate, his sonand daughters would have been entitled to succeed to his estate includingthe house property, equally. But the petition was filed seeking grant ofLetters of Administration in favour of the plaintiffs, on the basis of thetestament of the deceased, E. Srinivasa Pillai dated 04[th] January, 1978.It is also not in dispute that the said testament had not seen the light ofthe day for fifteen years and only after the filing of the suit for partitionand separate possession by the appellants, i.e. the daughters of the testatorherein, the respondents herein sought Letters of Administration on thebasis of the will of deceased E. Srinivasa Pillai, which was said to beexecuted on 04[th] January, 1978.

24. Before proceeding to answer the point for determination inthis appeal, it would be useful to cull out the relevant points from thejudgment of the learned Trial Judge as well as the Division Bench of theHigh Court.

25. The learned Trial Judge had dismissed the suit despite theevidence of PW1, being the first plaintiff and PW2, being one of theattestors of the will (Ex-P1) after considering the same in detail and hadnoted the following aspects:

(i)The testator E. Srinivasa Pillai who is said to have executedthe will (Ex-P1) on 04[th] January, 1978 had died 15 dayslater.

(ii)The will is an unregistered one.

A(iii)The testator’s son, S. Damodaran was practicingadvocate.

(iv)The testator was also educated.

(v)That the testator was not in sound and disposing state ofmind as he was seriously ill and weak prior to his death, asBhe was suffering from paralytic attack.

(vi)PW2 had deposed in his evidence that the testator wassuffering from paralytic attack and was unable to movehis right hand and right leg prior to his death and he wasconfined to the house for about ten months prior to his deathCand he was unable to write.

(vii)The son of the testator was not aware of the execution ofthe will and he did not take any step for probate of thesame.

D(viii) After the death of testator’s son, S. Damodaran, his wife-plaintiff No.1, came forward to seek Letters ofAdministration.

(ix)There were proceedings for divorce between PW1 and herhusband, S. Damodaran and she had also consented fordivorce.E

(x)Though the person who wrote the will was known to thefather-in-law of PW1, his name is not mentioned in the willnor does the will have any date mentioned in it.

(xi)The will (Ex-P1) had not seen the light of the day for nearlyFfifteen years although the testator’s son was practisingadvocate.

(xii)PW2 admitted that PW1 was outside the room at the timeof the execution of the will whereas PW1 stated that whenthe will (Ex-P1) was executed by her father-in-law sheGwas present. So, there exists discrepancy in the versionsof evidences by PW1 and PW2.

(xiii) PW2 had admitted that he had filed the affidavit on therequest of the advocate and not on his own accord.Therefore, no weight could be attached to the evidence ofPW2.H

(xiv) Daughters of the deceased had filed partition suit beingO.S. No. 5977 of 1990. It is only, thereafter,that proceedingswere commenced by the plaintiffs for grant of Letters ofAdministration.

(xv)Since the testator was not healthy prior to his death andwas suffering from paralysis, he was not in position toBwrite (sign). Hence, it is doubtful that he had executed thewill.

(xvi) The attestator himself had admitted about the healthcondition of the testator by stating that he could not be takento the Sub-Registrar’s office for the registration of the willCon account of the paralytic attack.

(xvii) Execution of the will is itself suspicious and the evidenceregarding execution of the will has not dispelled thesuspicious circumstances.

(xviii) The bequest is also questioned inasmuch as the daughtershave no share in the house property.26. In view of the aforesaid points, the learned Trial Judge dismissedthe suit filed by the plaintiffs-respondents herein.

27. The Division Bench before whom the appeal was preferred,after observing that Section 68 of the Indian Evidence Act, 1872, has tobe complied with to establish proof of the will, noted that only one of theattesting witnesses, namely, Varadan was examined as PW2, as theother attesting witness, namely, Dakshinamurthy was not alive to beexamined so as to corroborate the genuineness of the will which ispermissible in law.

28. In Paragraphs 8 to 11 of the judgment, the Division Bench ofthe High Court has observed as under:

“8. This Court has also verified the signatures of the testator inthe will with those of the signatures available in the previousdocuments namely, Ex-P2 school Leaving Certificate, and Ex-P3, Building Plan. On verification, this Court has no hesitation tohold that the signatures available in the will are tallied with thesignatures available in the School Leaving Certificate and theBuilding Plan. Though it is stated by the respondents that the legatesfiled matrimonial petition against the appellant, in the absence of

Aany order thereon, this Court cannot give much importance tosuch proceedings. Also, the respondents filed suit for partitionof the suit property on the file of IV Assistant City Civil Court,Chennai, which is stated to be pending.

9. It is argued by the learned counsel for the respondents thatBthere is an inordinate delay in initiating the proceedings for probateof the will. In this context, it is to be stated that the time taken andthe reasons adduced for initiation of probate proceedings are thefactors to be considered on the peculiar facts and circumstancesof this case. Hence, the said argument fails.

C10. The proof and validity of the will has to be examined on thesettled propositions of law such as the evidence of the attestor,comparison of signatures of the testator, legal principles, intentionof the testator and other circumstances. However, the learnedsingle Judge proceeded on the sole ground that the will had notbeen probated for long time. Therefore, the reasoning given byDthe learned single Judge cannot be sustained, as the legal principlesare not properly follows.

11. For the foregoing reasons and in view of the discussion madeabove, the judgment of the learned single Judge is legally infirmedand the same is set aside. As such, this O.S.A. is allowed. NoEcosts. Consequently, the connected C.M.P.No.9517 of 2006 and1492 of 2008 are closed.”

29. With the aforesaid observations, the judgment of the learnedTrial Judge was reversed by the Division Bench.

F30. Before considering the correctness of the impugned judgmentof the Division Bench of the High Court, it would be useful to refer tothe following judgments of this Court on proof of wills:

(a) One of the celebrated decisions of this Court on proof of awill, reported in AIR 1959 SC 443 is in the case of H.VenkatachalaIyenger vs. B.N.Thimmajamma, wherein this Court has clearlyGdistinguished the nature of proof required for testament as opposed toany other document. The relevant portion of the said judgment reads asunder:-

“18. The party propounding will or otherwise making claimunder will is no doubt seeking to prove document and, inH

[B. V. NAGARATHNA J.]

deciding how it is to be proved, we must inevitably refer to thestatutory provisions which govern the proof of documents. Sections67and 68,Evidence Actare relevant for this purpose.Under Section 67, if document is alleged to be signed by anyperson, the signature of the said person must be proved to be inhis handwriting, and for proving such handwriting under Sections45and 47of the Act the opinions of experts and of personsacquainted with the handwriting of the person concerned are maderelevant. Section 68 deals with the proof of the execution of thedocument required by law to be attested; and it provides that sucha document shall not be used as evidence until one attesting witnessat least has been called for the purpose of proving its execution.These provisions prescribe the requirements and the nature ofproof which must be satisfied by the party who relies on adocument in court of law. Similarly, Sections 59and 63 of theIndian Succession Act are also relevant. Section 59provides thatevery person of sound mind, not being minor, may dispose of hisproperty by will and the three illustrations to this section indicatewhat is meant by the expression “a person of sound mind” in thecontext. Section 63 requires that the testator shall sign or affix hismark to the will or it shall be signed by some other person in hispresence and by his direction and that the signature or mark shallbe so made that it shall appear that it was intended thereby to giveeffect to the writing as will. This section also requires that thewill shall be attested by two or more witnesses as prescribed.Thus the question as to whether the will set up by the propounderis proved to be the last will of the testator has to be decided in thelight of these provisions. Has the testator signed the will? Did heunderstand the nature and effect of the dispositions in the will?Did he put his signature to the will knowing what it contained?Stated broadly it is the decision of these questions which determinesthe nature of the finding on the question of the proof of wills. Itwould prima facie be true to say that the will has to be proved likeany other document except as to the special requirements ofattestation prescribed by Section 63of the Indian Succession Act.As in the case of proof of other documents so in the case of proofof wills it would be idle to expect proof with mathematical certainty.The test to be applied would be the usual test of the satisfactionof the prudent mind in such matters.”

AIn fact, the legal principles with regard to the proof of will areno longer res integra. Section 63of the Indian Succession Act, 1925and Section 68 of the Evidence Act, 1872, are relevant in this regard.The propounder of the will must examine one or more attesting witnessesand the onus is placed on the propounder to remove all suspiciouscircumstances with regard to the execution of the will. In the aboveBnoted case, this Court has stated that the following three aspects mustbe proved by propounder:-

“(i) that the will was signed by the testator in sound and disposingstate of mind duly understanding the nature and effect of dispositionand he put his signature on the document of his own free will, and

(ii) when the evidence adduced in support of the will is disinterested,satisfactory and sufficient to prove the sound and disposing stateof the testator’s mind and his signature as required by law, courtswould be justified in making finding in favour of propounder, and

D(iii) if will is challenged as surrounded by suspiciouscircumstances, all such legitimate doubts have to be removed bycogent, satisfactory and sufficient evidence to dispel suspicion. Inother words, the onus on the propounded can be taken to bedischarged on proof of the essential facts indicated therein.”

E(b) In Jaswant Kaur v. Amrit Kaur and others[1977 1 SCC369], this Court pointed out that when will is allegedly shrouded insuspicion, its proof ceases to be simple lis between the plaintiff andthe defendant. What generally is an adversarial proceeding, becomes insuch cases, matter of the Court’s conscience and then, the true questionwhich arises for consideration is, whether, the evidence let in by theFpropounder of the will is such as would satisfy the conscience of theCourt that the will was duly executed by the testator. It is impossible toreach such satisfaction unless the party which sets up the will offerscogent and convincing explanation with regard to any suspiciouscircumstance surrounding the making of the will.

G(c) In Bharpur Singh and others v. Shamsher Singh[2009 (3)SCC 687], at Para 23, this Court has narrated few suspiciouscircumstance, as being illustrative but not exhaustive, in the followingmanner:-

“23. Suspicious circumstances like the following may be found toHbe surrounded in the execution of the will:

(i) The signature of the testator may be very shaky and doubtfulor not appear to be his usual signature.

(ii) The condition of the testator’s mind may be very feeble anddebilitated at the relevant time.

(iii) The disposition may be unnatural, improbable or unfair in theBlight of relevant circumstances like exclusion of or absence ofadequate provisions for the natural heirs without any reason.

(iv) The dispositions may not appear to be the result of the testator’sfree will and mind.

(v) The propounder takes prominent part in the execution of thewill.

(vi) The testator used to sign blank papers.

(vii) The will did not see the light of the day for long.

(viii) Incorrect recitals of essential facts.”

It was further observed that the circumstances narratedhereinbefore are not exhaustive. Subject to offering of reasonableexplanation, existence thereof must be taken into consideration for thepurpose of arriving at finding as to whether the execution of the willhad been duly proved or not. It may be true that the Will was registeredone, but the same by itself would not mean that the statutory requirementsof proving the will need not be complied with.

(d) In Naranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, [(2006)13 SCC 433], in Paras 34 to 37, this Court has observed as under:-

“34. There are several circumstances which would have beenheld to be described by this Court as suspicious circumstances:

(i)when doubt is created in regard to the condition ofmind of the testator despite his signature on the will;

(ii)When the disposition appears to be unnatural or whollyunfair in the light of the relevant circumstances;

(iii)where propounder himself takes prominent part inthe execution of will which confers on him substantialbenefit.

35. We may not delve deep into the decisions cited at the Bar asthe question has recently been considered by this Courts in

B.Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC449], wherein this Court has held that the court must satisfy itsconscience as regards due execution of the will by the testatorand the court would not refuse to probe deeper into the matteronly because the signature of the propounder on the will isotherwise proved.

36. The proof of will is required not as ground of reading thedocument but to afford the Judge reasonable assurance of it asbeing what it purports to be.

37. We may, however, hasten to add that there exists distinctionwhere suspicions are well founded and the cases where there areonly suspicions alone. Existence of suspicious circumstances alonemay not be sufficient. The court may not start with suspicionand it should not close its mind to find the truth. resolute andimpenetrable incredulity is not demanded from the Judge even ifthere exist circumstances of grave suspicion.”

(e) This Court in Anil Kak v. Sharada Raje, [(2008) 7 SCC 695],held as under:-

“20. This Court in Anil Kak v. Sharada Raje opined that thecourt is required to adopt rational approach and is furthermorerequired to satisfy its conscience as existence of suspiciouscircumstances plays an important role, holding:

52. Whereas execution of any other document can be provedby proving the writings of the document or the contents of it asalso the execution thereof, in the event there exists suspiciouscircumstances the party seeking to obtain probate and/or lettersof administration with copy of the will annexed must alsoadduce evidence to the satisfaction of the court before it canbe accepted as genuine.

53. As an order granting probate is judgment in rem, thecourt must also satisfy its conscience before it passes an order.

54. It may be true that deprivation of due share by (sic to)the natural heir by itself may not be held to be suspiciouscircumstance but it is one of the factors which is taken intoconsideration by the courts before granting probate of awill.

55. Unlike other documents, even animus attestandi is anecessary ingredient for proving the attestation.”

(f) Similarly, in Leela Rajagopal and others v. Kamala MenonCocharan and others, [(2014) 15 SCC 570], this Court opined as under:-

“13. will may have certain features and may have been executedin certain circumstances which may appear to be somewhatunnatural. Such unusual features appearing in will or theunnatural circumstances surrounding its execution will definitelyjustify close scrutiny before the same can be accepted. It is theoverall assessment of the court on the basis of such scrutiny; thecumulative effect of the unusual features and circumstances whichwould weigh with the court in the determination required to bemade by it. The judicial verdict, in the last resort, will be on thebasis of consideration of all the unusual features and suspiciouscircumstances put together and not on the impact of any singlefeature that may be found in will or singular circumstance thatmay appear from the process leading to its execution orregistration. This, is the essence of the repeated pronouncementsmade by this Court on the subject including the decisions referredto and relied upon before us.31. In light of the aforesaid discussion, the validity of will (Ex-P1)said to be the last will and testament of deceased E. Srinivasa Pillai shallbe considered. On reading of will (Ex-P1), we note that immovableproperty bearing House No.6/1 Azeez Nagar, 2[nd] Street, Kodambakkam,Madras – 600024 and the building situate on it being about two groundswhich was bought by the testator in the year 1953 is the subject matterof the bequest to his son S. Damodaran practising advocate at Madras.The will further recites as under :

“I desire that this house should go to my son S. Damodaran andhe must inherit without any conditions and I herein transfer itabsolutely to him with all powers inclusive of disposing it off ifnecessary. No other person should have any claim over it. As Iam sick and getting weak, I write and sign this will in the presenceof these two witnesses who are present before me on this the 4[th]day of January, 1978 and put my signature in their presence.”

At this stage we note that the will itself recites that the testatorwas sick and getting weak.

A32. Learned counsel for the appellants has adumbrated on thefollowing suspicious circumstances in the execution of the will. Theycan be succinctly stated as under:

(i)Date of the will and date of death of the testator being tooclose throws doubt on the sound disposing state of mindBof the testator.

(ii)Testator was bedridden prior to his death as he was sufferingfrom paralysis.

(iii)Attestor (PW2) being known to the first plaintiff, thepropounder of the will, but not to the deceased testator.

(iv)The husband of the first plaintiff and son of the testator,who was practicing advocate, was unaware of theexecution of the will during his lifetime.

(v)The signature on the will (Ex-P1) does not tally with thesignatures of the testator on Ex-P2 (SSLC Register) andEx-P3 (Extract of sanction plan).

(vi)The evidence of PW1 and PW2 is not credible.

(vii)There exists discrepancy in the evidence of PW1 and PW2.

(viii) That the respondents-plaintiffs have failed to prove the willEto the satisfaction of the conscience of the Court and havenot removed the suspicious circumstances in the executionof the will.

33. We shall now discuss each of the aforesaid aspects.F(a)The date of the will (Ex-P1) is 04[th] January, 1978. Thetestator E. Srinivasa Pillai died on 19[th] January, 1978, withina period of fifteen days from the date of execution of thewill. Even on reading of the will, it is noted that the testatorhimself has stated that he was sick and getting weak eventhen he is stated to have “written” the will himself which isGnot believable. It has been deposed by PW2, one of theattestors of the will, that the will could not be registered asthe testator was unwell and in fact, he was bedridden. Ithas also come in evidence that the testator had suffered aparalytic stroke which had affected his speech, mobility ofhis right arm and right leg. He was bedridden for period

of ten months prior to his death. Taking the aforesaid twocircumstances into consideration, doubt is created as towhether the testator was in sound and disposing state ofmind at the time of making of the testament which wasfifteen days prior to his death.

(b)No evidence of the doctor who was treating the testatorhas been placed on record so as to prove that the testatorwas in sound and disposing state at the time of the executionof the will.

(c)The fact that the testator died within period of fifteendays from the date of the execution of the will, casts adoubt on the thinking capacity and the physical and mentalfaculties of the testator. The said suspicion in the mind ofthe Court has not been removed by the propounder of thewill i.e. first plaintiff by producing any contra medicalevidence or the evidence of the doctor who was treatingthe testator prior to his death.

(d)In this context, it would be useful to place reliance on Section63 of the Indian Succession Act, 1925 which categoricallystates that the testator has to sign on the will and the signatureof the testator must be such that it would “intend” therebyto give effect to the writing of will. Hence, thegenuineness of the will must be proved by proving theintention of the testator to make the testament and for that,all steps which are required to be taken for making validtestament must be proved by placing concrete evidencebefore the Court. In the instant case, there is no evidenceas to whom the testator gave instructions to, to write thewill. The scribe has also not been examined. It is also notknown as to whether the assistance of an advocate or anyother trustworthy person was taken by the testator in orderto make the testament and bequeath the property to onlythe son of the testator.

(e)Apart from that, Section 63(c) of the Indian SuccessionAct, 1925, firstly states that the will has to be attested bytwo or more witnesses/attestators, each of whom shouldhave seen the testator sign on the will in his presence, orhas received from the testator, personal acknowledgment

Aof his signature on the will. Secondly, each of the witnessesshall sign on the will in the presence of the testator but itshall not be necessary that more than one witness bepresent at the same time, and no particular form ofattestation is necessary. The aforesaid two mandatoryrequirements have to be complied with for testament toBbe valid from the point of view of its execution. In the instantcase, there are two attestors namely, PW2-Varadan andDakshinmurthy and the latter had died. The evidence onrecord has to be as per Section 68 of the Indian EvidenceAct, 1872 which deals with proof of documents whichCmandate attestation. In order to prove the execution of thedocument such as testament, at least one of the attestingwitnesses who had attested the same must be called togive evidence for the purpose of proof of its execution.Since one of the attestors, namely, Dakshinmurthy had died,PW2, Varadan had given his evidence as one of the attestorsDof the will. However, the deposition of PW2 is such that itis fatal to the case of the plaintiffs. The evidence of PW2could be highlighted as under:

(i)He was friend of the testator and he was frequentlyvisiting the testator once in two or three days.

(ii)He signed as the first attesting witness on Ex-P1and Dakshinmurthy signed as second attestingwitness and the testator saw both the attestors signingEx-P1. However, he has deposed that it was notpossible to take the testator to the Registrar’s officeFfor registering the will as the testator was not in asound condition and he was very seriously ill, he wassuffering from paralysis.

(iii)He has admitted that testator was suffering fromparalysis of right hand and right leg and prior to hisGdeath, was sick for about 10 months and was confinedto his house and not in position to write.

(iv)PW2 has also stated that he had not disclosed aboutthe will to S. Damodaran, the son of the testator andduring his lifetime, S. Damodaran was unaware ofthe will executed by his father.

(v)S. Damodaran, (who was practicing advocate) livedAfor about eleven years after the execution of will(Ex-P1) and since he was unaware of the willexecuted by his father, he did not take steps to seekprobate of the will.

(vi)He has also admitted that he signed the affidavit inthe suit on the instructions and as requested by thecounsel.

(f)The Trial Court has not believed the evidence of PW2. It ishighly improbable that the only son of the testator who wasa practicing advocate and on whom the bequest of the housewas made, was unaware of the execution of the will by hisfather. It is unnatural that the father would not have disclosedto his only son about the bequest of the property, (particularlywhen the son was practicing advocate) and had also nottaken his son’s assistance in the drafting as well as executionof the will.

(g)Learned counsel for the appellants has drawn our attentionto the fact that the signature of the testator on the will (Ex-P1) does not tally with his signatures on Ex-P2 and Ex-P3.We have compared the said signatures. Even though thesaid signatures on the aforesaid documents have been madeat different points of time, we find they are totally dissimilarinasmuch as the signatures on Ex-P2 and P3 do not resembleeach other and the signature on the will (Ex-P1) is dissimilarto the signatures of testator on Ex-P2 and P3, particularlythe letter ‘E’. This fact raises suspicion in the mind of thisCourt as to whether the signature on Ex-P1 was really thatof the testator. Further if really the testator had himselfwritten the will the fonts of the recital of the will and hissignature do not at all match.

(h)It was also contended that the evidence of PW1, thepropounder of the will, does not inspire confidence. We shallhighlight the same:

(i)PW1 has stated that Ex-P1 was executed aboutfifteen days prior to the death of the testator whowas her father-in-law and the same was in the

Acustody of the testator. Ex-P1 has seen light of theday, only after the demise of the testator’s son whowas unaware of the will and during the pendency ofthe suit filed by the appellants herein seeking partitionand separate possession of the property or the estateleft behind by their father. There is no explanationBregarding the custody of the will after the demise ofthe testator and for over fifteen years.

(ii)PW1 has stated that the will was kept in secretplace in her husband’s almirah and that she took itCout only after fifteen days of his death. This admissionimplies that only PW1 was aware of the executionof the will as well as the secret place where it waskept. If the will was in the custody of the testator asdeposed by PW1, there is no explanation as to howthe document found place in the almirah belongingDto her husband, particularly, when the testator wasbedridden during the last few months (ten months)before his demise and was not in position to movearound.

(iii)PW1 has stated that the will was written by personEknown to her father-in-law but the name of the personwho wrote the will has not been mentioned therein.There is no mention of or evidence of the scribe ofthe will.

(iv)PW1 has also admitted that no date has beenFmentioned on top of the will. Thus, the date of theexecution of the will has also not found place onEx-P1. This aspect also casts doubt as to whetherthe will was executed by the testator during hislifetime.

(v)PW1 has stated that Ex-P1 was executed by herfather-in-law and she was present when it wasexecuted but PW2, the attestor has stated that PW1was outside the room at the time of execution of thewill.

In view of the above, we find much force in the submissionof appellant’s counsel.

(i)On the other hand, the evidence of DW1 in relation to thefact that the testator was not in good health and he wassuffering from paralytic attack and was not in positionto write, is in corroboration with what PW2 has alsoadmitted in his evidence, that the testator could not be takento the sub-Registrar’s office for the registration of the willas he was suffering from paralytic stroke.

(j)It has also come in evidence that there was no cordialrelationship between the first plaintiff and her husband S.Damodaran and in fact proceedings for dissolution ofmarriage were initiated which became infructuous on hisdemise.

34. For the aforesaid reasons, we hold that the respondents-plaintiffs have not been successful in proving the validity of the will inaccordance with law inasmuch as the suspicious circumstancessurrounding the very execution of the will have not been cleared by anycogent evidence, rather, the genuineness of Ex-P1 remains in doubt. It isobserved that the will (Ex-P1) did not come into existence at the instanceof the testator but it is concocted document and has been got up afterthe demise of S. Damodaran.

35. In view of the aforesaid discussion, we hold that therespondents-plaintiffs have failed to prove the will (Ex-P1) in accordancewith law inasmuch as they have not removed the suspiciouscircumstances, surrounding the execution of the will. Hence, Ex-P1, notbeing valid document in the eye of law, no Letters of Administrationcan be granted to the respondents-plaintiffs.

36. In the circumstances, we hold that the learned Trial Judgewas right in dismissing the suit. However, the Appellate Court being theDivision Bench has reversed the judgment and decree passed by theTrial Court and has decreed the suit. On extracting the relevant portionsof the judgment of the Appellate Court, which consists of elevenparagraphs, it is found that the same has been written in cryptic manner.It is observed that the judgment could be brief and succinct if the AppellateCourt is to dismiss an appeal and affirm the judgment and decree of theTrial Court. But when the judgment and decree of the Trial court is to be

Areversed then it is incumbent upon the Appellate Court to dwell into thematter in detail and to give reasons for reversing the same. Assigningreasons not only makes the judgment wholesome, but is also necessaryin order to deduce and lead to just conclusions.

37. Before parting with this case, we would like to reiterate thatBin this case, the High Court has dealt with the judgment of the learnedTrial Judge in short cut method, bereft of all reasoning while reversingthe judgment of the Trial Court both on facts as well as law. It is tritethat the Appellate Court has jurisdiction to reverse, affirm or modify thefindings and the judgment of the Trial Court. However, while reversingor modifying the judgment of Trial Court, it is the duty of the AppellateCCourt to reflect in its judgment, conscious application of mind on thefindings recorded supported by reasons, on all issues dealt with, as wellas the contentions put forth, and pressed by the parties for decision ofthe Appellate Court. No doubt, when the Appellate Court affirms thejudgment of Trial Court, the reasoning need not to be elaborate althoughDreappreciation of the evidence and reconsideration of the judgment ofthe Trial Court are necessary concomitants. But while reversing ajudgment of Trial Court, the Appellate Court must be more consciousof its duty in assigning the reasons for doing so.38. In this regard, we may usefully rely upon judgment of thisECourt in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs -(2001) 3 SCC 179, wherein it has been observed that while writing ajudgment of reversal, an Appellate Court must remain conscious of twoprinciples. Firstly, the findings of facts based on conflicting evidencearrived at by the Trial Court must weigh with the Appellate Court, moreso when the findings are based on oral evidence recorded by the sameFPresiding Judge who authors the judgment. If, on an appraisal of theevidence, it is found that the judgment of the Trial Court suffers from amaterial irregularity or is based on inadmissible evidence or on conjecturesand surmises, the Appellate Court is entitled to interfere with the findingof fact but by assigning cogent reasons for doing so. Otherwise, theGfindings of the Trial Court should not be interfered with lightly on questionof fact. Secondly, while reversing finding of fact, it is necessary thatthe Appellate Court assigns its own reasons for doing so. This is especiallyso in case there are further appeals under Section 100 of the Code ofCivil Procedure, 1908, as the first Appellate Court is the final court offacts and the said findings are immune from challenge in second appeal.H

39. In B.V. Nagesh v. H.V. Sreenivasa Murthy – (2010) 13SCC 530, this Court taking note of all the earlier judgments of this Courtreiterated the aforementioned principle in these words : (SCC pp.530-31, paras 3-5)

“3. How the regular first appeal is to be disposed of by the appellatecourt/High Court has been considered by this Court in variousdecisions. Order 41 CPC has been considered by this Court invarious decisions. Order 41 CPC deals with appeals from originaldecrees. Among the various rules, Rule 31 mandates that thejudgment of the appellate court shall state :

(a)the points for determination;

(b)the decision thereon;

(c)the reasons for the decision; and

(d)where the decree appealed from is reversed or varied,the relief to which the appellant is entitled.

4. the appellate court has jurisdiction to reverse or affirm thefindings of the trial court. The first appeal is valuable right of theparties and unless restricted by law, the whole case is thereinopen for rehearing both on questions of fact and law. The judgmentof the appellate court must, therefore, reflect its consciousapplication of mind and record findings supported by reasons, onall the issues arising along with the contentions put forth, andpressed by the parties for decision of the appellate court. Sittingas court of first appeal, it was the duty of the High Court to dealwith all the issues and the evidence led by the parties beforerecording its findings. The first appeal is valuable right and theparties have right to be heard both on questions of law and onfacts and the judgment in the first appeal must address itself to allthe issues of law and fact and decide it by giving reasons in supportof the findings. (Vide Santosh Hazari v. Purushottam Tiwari –(2001) 3 SCC 179 at p.188 para 15 and Madhukar v. Sangram –(2001) 4 SCC 756 at p.758, para 5.”

40. To similar effect, are the observation of this Court in VinodKumar v. Gangadhar - (2015) 1 SCC 391, wherein it has been observedthat in first appeal under Section 96 of the Code of Civil Procedure,1908, the scope and powers conferred on the First Appellate Court are

Adelineated in Order XLI of the Code and grounds raised in the appeal,reappreciation of evidence adduced by the parties and application of therelevant legal principles and decided case law have to be consideredwhile deciding whether the judgment of the Trial Court can be sustainedor not.

B41. It is also necessary to observe that the right to appeal is acreature of statute. The right to file an appeal by an unsuccessful partyassailing the judgment of the Original Court is valuable right and hencea duty is cast on the Appellate Court to adjudicate first appeal both onquestions of fact and applicable law. Hence, the reappreciation ofevidence in light of the contentions raised by the respective parties andCjudicial precedent and the law applicable to the case have to beconscientiously dealt with.

42. In the instant case, the Division Bench of the High Court hassimply reversed the judgment of the learned Trial Judge in the absenceof reappreciation of evidence and without giving findings on questions ofDfact as well as on the applicable law and by not reasoning as to why thejudgment of the learned Trial Judge was erroneous.

43. In the circumstances, we set aside the judgment and decreeof the Division Bench of the High Court dated 08[th] December, 2008 inO.S.A 470 of 2002 and restore the judgment of the Learned Trial JudgeEpassed in O.T.S No. 20/1994 dated 14th January, 2000 by allowing instantappeal.

44. Having regard to the relationship between the parties, theyshall bear their respective costs.

F45. Interlocutory applications, if any, stand disposed.

Devika Gujral

Appeal allowed.