Srinivasa & Ors. Vs. S. Padmavathamma  INSC 300 (22 April 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4623 OF
2005 S.R. SRINIVASA & ORS. .....APPELLANTS VERSUS
SINGH NIJJAR, J.
appeal by special leave has been filed by the legal heirs of the original
plaintiff, Lalithamma. OS No.195 of 1986 had been filed by Lalithamma in the
Court of Civil Judge, Mysore which was subsequently re-numbered as OS No.1434
of 1990 in the Court of Principal Civil Judge, (Junior Division), Mysore. The
suit was for declaration that the plaintiff and defendant No.4 are the absolute
owners of the suit schedule property and for possession thereof. The suit was
dismissed by the trial court. The appeal filed by the plaintiffs against the
aforesaid judgment was allowed. The suit filed by the plaintiffs was decreed as
prayed. The High Court, however, in regular 1 second appeal filed by the
respondent herein, set aside the judgment of the first appellate court and
restored the judgment of the trial court, i.e. the suit filed by the
plaintiffs-respondents was dismissed.
circumstances, the legal representatives of the original plaintiffs have filed
the present appeal by special leave in this Court.
Briefly stated the facts of the case are that the plaintiffs claimed that
Puttathayamma was wife of Sivaramaiah who pre-deceased her in 1950.
Puttathayamma died on 15.11.1979. She had four children.
(daughter) who died in 1990, was the original plaintiff.
(son) who died issueless in 1973 and Smt. Kamalamma (daughter) also died
issueless in 1998. She was impleaded as defendant No.4 in this suit. Smt.
Indiramma was the 4th child. She also died issueless on 24.10.85. It is claimed
that upon the death of Subbaramaiah, Puttathayamma inherited the suit property
and became the absolute owner being class one heir of Subbaramaiah. Upon the
death of Puttathayamma, the deceased plaintiff, defendant No.4, Kamalamma and
Indiramma inherited her property. During her life time, Puttathayamma was
living with Indiramma. Upon her death, Indiramma continued to be in possession
of the property. The dispute about the property arose soon after the death of
the original plaintiff - Lalithamma and defendant No.4 were residing outside,
they did not come to know about the death of their sister, Indiramma. Defendant
No.1 claiming to be close relative of deceased Indiramma organized and
performed her cremation ceremony. The house in which Indiramma was residing
i.e., schedule property contained a lot of movable properties such as gold and
silver jewellery and other articles which were of considerable value. He took
charge of the house as well as the moveable properties by putting it under lock
and key. On learning about the death of their sister, appellants and defendant
No.4 came to Mysore. They demanded that defendant No.1 should hand over the
possession of the house and moveable properties. He, however, refused to do so
asserting that he was the absolute owner of the entire property. Not only this,
it is stated that defendant No.1 had taken away several lacs of rupees which
had been kept by Indiramma in various fixed deposits.
No.1 had declined to hand over the title deeds of the schedule property as well
as the bank deposit receipts.
appellant and defendant No.4 also learnt that the first defendant had taken
heavy advances from defendants No.2 and 3 and put them in possession of
different portions of the schedule property as tenant. He had been recovering
heavy rent from defendants No.2 and 3. During the pendency of the suit,
defendants No.2 and 3 3 vacated the suit schedule property. Later, defendant no
5 was put in possession of the property.
5. In the
suit, it is made clear that appellant and the 4 th defendant will take separate
action regarding the bank deposits and other moveable properties in appropriate
proceedings after ascertaining the particulars thereof. It is clarified that
the present suit was filed for declaration of the title to the property and for
possession as the first defendant has denied their title by refusing to hand
over the property to them.
6. We may
also notice here that during the pendency of the suit, defendant No.4 also
passed away issueless. The amended suit was, therefore, pursued by the L.Rs of
7. In the
written statement, it was claimed by the defendant No.1 that Puttathayamma had
executed a Will on 18.6.1974 in favour of Indiramma. Consequently, there was no
succession devolved on late Indiramma. Therefore, neither the plaintiffs nor
the 4th defendant could succeed to the properties of Puttathayamma at all.
During the life time of Indiramma, her sister did not care to even look after
her. The moment she died, they have claimed to be heirs of her estate.
Defendant No.1, on the other hand, is the son of Seethamma, sister of
Puttathayamma. He denied the entire claim made by the plaintiffs.
further explained that he had informed the plaintiff and defendant No.4 about
the death of Indiramma. Although the plaintiff turned up on the 5th day, the
4th defendant did not choose to come at all.
No.1 further claimed to have carried out extensive repairs of the house. It is
also pleaded by defendant No.1 that Indiramma was the second wife of one
Chalapati Rao, who pre-deceased her.
Chalapati Rao did not beget any children with Indiramma, he died leaving four
sons and two daughters from his first wife.
to the first defendant, the legal heirs of Chalapati Rao would have preference
over the appellants and defendant No.4.
under any circumstances, no relief could be granted to them.
reply to the amended plaint, defendant No.1 stated that an agreement of
mortgage had been created in favour of 5 th defendant in respect of the
schedule property. Upon receiving Rs.1,00,000/-, defendant No.1 has put
defendant No.5 in possession.
these pleadings parties led their evidence. Upon consideration of the entire
material, the suit filed by the appellants herein was dismissed by the Trial
Trial Court notices that defendant No.1 is the son of Seethamma, sister of Puttathayamma.
It is also noticed that Indiramma was the second wife of one Chelapathirao who
had six children from his previous marriage. Indiramma, however, died
issueless. The Will dated 18.6.1974 was produced by defendant No.1, during
evidence. The Trial Court observed that the plaintiffs have not seriously
disputed the execution of the Will by Puttathayamma in favour of Indiramma.
Defendant No.1 had examined the scribe of the Will as DW2 to prove the Will. It
has been held that the appellants in fact admitted the execution of the Will in
a subsequent suit being OS No.233 of 1998 which was filed by the appellants
herein as the legal heirs. In view of the testamentary succession, Indiramma
became the absolute owner of the schedule property. Since husband of Indiramma
had pre-deceased her, the property would devolve upon his children under
Section 15 (1) (b) of the Hindu Succession Act, 1956 (hereinafter referred to
as "the Act"). It would not devolve on the appellants and defendant
No.4 under Section 15(2) of the Act. The Trial Court further notices the claim
made by the first defendant during trial that Indiramma had executed a Will in
his favour dated 2.10.1984, bequeathing the schedule property to him. The Trial
Court further notices that though defendant No.1 had got the Will dated 2.10.84
marked as Exhibit, he had not chosen to examine any 6 of the attesting
witnesses to the document. Defendant No.1 had earlier not instituted any
proceedings to prove his title over the schedule property pursuant to the alleged
Will. Consequently, the claim of defendant No.1 over the schedule property has
also been negatived. However, in view of the finding that appellants and
defendant No.4 cannot not inherit the property of Puttathayamma under Section
15 (2) of the Act, the suit has been dismissed.
aforesaid judgment of the Trial Court was challenged by the petitioners in
appeal. The first appellate court in a very elaborately written judgment
recapitulated the undisputed facts. It is noticed that Puttathayamma had four
children, namely, plaintiff, defendant No.4, Subbaramaiah (who pre-deceased
Puttathayamma) and Indiramma. Indiramma was in possession of the schedule
death of Puttathayamma, plaintiff and defendant No.4 were residing in their matrimonial
homes away from Puttathayamma.
No.1 had cremated Indiramma. Appellant and defendant No.4 had not been present
at the time of the cremation.
they demanded the possession of the house which the first defendant refused to
hand over. The first defendant claimed to have put 5th defendant in possession
as a mortgagee. Therefore they filed the suit claiming title over the property
and possession thereof.
written statement defendant No.1 claimed that entire movable 7 and immovable
property had been bequeathed to Indiramma in a Will dated 18.6.1974. The first
appellate court upon examination of the entire evidence accepts the submission
made on behalf of the petitioners that the execution of the Will is shrouded by
suspicious circumstances. The first appellate court also negatived the
submission made on behalf of the first defendant that the plaintiffs have
admitted the execution of the Will in the subsequent suit. Upon examination of
the evidence, the first appellate court had come to the conclusion that PW1 had
not admitted the genuineness of the Will anywhere. This witness had also stated
that he had come to know about the Will of Puttathayamma from the written
statement filed by defendant No.1. It is, therefore, held that there can be no
presumption with regard to the genuineness of the Will on the basis of the
alleged admission. Therefore the first appeal was allowed, judgment and decree
of the Trial Court were set aside. The suit filed by the plaintiffs/appellants
was decreed with costs declaring that the legal representatives of the
plaintiffs are the owners of the suit property and they are entitled for
possession of the suit schedule property.
Aggrieved against this, defendant No.1 filed Regular Second Appeal No.641 of
2003 in the High Court of Karnataka, Bangalore.
High Court allowed the Regular Second Appeal and nonsuited the plaintiffs, with
the following observations:- "5. The contesting 1st defendant does not set
up a rival claim of title, but only disputes the title of the plaintiffs and
their right to seek possession. According to the 1st defendant, Ex.D7 is the
registered will executed by Puttathayamma in favour of her daughter, Indiramma.
As argued by Shri T.N.
learned counsel for respondents- appellants, I find that PW1-1st plaintiff has
unequivocally admitted in his evidence, about issuance of legal notice prior to
the filing of the suit and allegations are made therein about execution of the
will by Puttathayamma in favour of Indiramma and also admits that she was
married to one Chalapati Rao who predeceased her and through his first wife,
had four children. Ex.D36 is the certified copy of the plaint in OS 233/98
filed by the plaintiffs herein. In the said suit, there is categorical averment
to the effect that Puttathayamma, during her lifetime, had executed the will,
bequeathing her immovable properties in favour of Indiramma. When execution of
the will has become an admitted fact by the plaintiff, formal proof of
execution by examining the attestors would not be necessary in law. Therefore,
I am unable agree with Sri Kashinath, learned counsel for the respondent that
the will is not prove. Further the finding of the appellate court that the will
is shrouded with suspicious circumstances is based on unwarranted surmises and
contrary to the admissions of the plaintiff. Accordingly, point no. (1) is
answered in the affirmative."
High Court further holds that since the property had been acquired by Indiramma
through Will, Section 15(2) of the Act would 9 not be applicable. It is noticed
that "The provisions of Section 15 (2) will apply only when the property
is acquired by a female by way of intestate succession, otherwise, the property
would devolve as directed under sub-Section (1). May be, the children of
deceased husband of Indiramma being step sons, are not entitled to succession
under sub-sec. (1) (a), but however as heirs of the husband, under sub-sec. (1)
(b) of Sec.15, they will be entitled to succeed to the estate.
view of the matter, the claim of title of property by the plaintiffs is
untenable." It is further held that since the children of the first wife
would be entitled to succeed to the estate, the appellants (plaintiffs) have no
right to seek the relief of title by succession.
the appeal was allowed. The judgment and decree of the Appellate Court was set
aside. The judgment and decree of the Trial Court was confirmed. This judgment
is challenged before us in the present appeal.
Bhat, learned counsel for the appellants has submitted that the judgment of the
High Court is wholly erroneous in facts as well as in law. According to the
learned counsel, the first appellate court has rightly held that the execution
of the Will has not been proved. There is no admission with regard to the
execution or the genuineness of the Will in the second suit. It was merely
stated that a Will has been executed by Puttathayamma. The Will had to be
proved in 10 accordance with the procedure laid down under Section 63 of the
Act and in accordance with Section 68 of the Indian Evidence Act. The first
appellate court, upon examination, of the entire circumstances came to the
conclusion that the Will is shrouded by suspicious circumstances. The High
Court, without examining any of the real issues has brushed aside the reasons
given by the first appellate court. According to the learned counsel, the
second suit had been filed by the appellants herein only to prevent respondent
No.1 from dealing with the movable properties of Puttathayamma. Even if the
execution of the Will is admitted, its genuineness had to be established by
respondent No.1. None of the attesting witnesses were examined. The Sub
Registrar was also not examined. DW2, the scribe did not anywhere mention that
he had attested the Will.
his examination as a witness would not cure the defects.
Court has also ignored the fact that Indiramma has taken an active part in
execution of the Will. She was present when the Will was written. She was also
present before the Sub Registrar.
to the learned counsel, the mother was not in a fit state of mind to have
executed the Will, shortly after the death of her only son. This fact has been
totally ignored by the High Court. If she had been the author of the Will, she
would not have described her son as a "bachelor" whereas in fact he
was a "divorcee". According to the learned counsel, the Will is a
manufactured document created by 11 defendant No.1 to exclude the appellants
from succession. Learned counsel further submitted that since it was a judgment
of reversal, it was necessary for the High Court to give cogent reasons to
explain as to how the conclusions reached by the first appellate court were not
acceptable. The High Court has reversed the judgment without giving any
reasons. In support of his submissions, learned counsel has relied on the
following judgments:- (1) Jayantilal Mansukhlal and another vs. Mehta Chhanalal
Ambalal, AIR 1968 Gujarat 212;
of Punjab vs. Balwant Singh and others, 1992 Supp (3) Supreme Court Cases 108;
Dandapani Chettiar vs. Balasubramanian Chettiar (Dead) by L.Rs. and Others,
(2003) 6 Supreme Court Cases 633;
Palanivelayutham Pillai and others vs. Ramachandran and others, (2000) 6 Supreme
Court Cases 151; and (5) K. Kamalam (dead) and another vs. Ayyasamy and
another, 2001 (7) Supreme Court Cases 503.
According to the learned counsel, the property would be thus inherited by the
appellants as Puttathayamma died intestate. He further submitted that even if
the Will dated 18.6.1974 is accepted as valid, defendant No.1 cannot inherit
the property of Indiramma as she had died intestate. The Will dated 2.10.84
propounded by defendant No.1 to have been made by Indiramma has not been proved.
again under Section 15 (2) of the Act, the property will revert back to the
plaintiffs/appellants. Learned counsel emphasized that defendant No.1 has no
locus standi to contest the title of the appellants as he is a complete
outsider for the family. Section 15 of 12 the Act has been enacted to ensure
that the property remains within the family. Therefore, this court has
consistently held against stranger in matters of succession.
Learned counsel for the respondents, on the other hand, submitted that the Will
from Puttathayamma is proved. There are no reasons to disbelieve a registered
Will. The exclusion of the other daughters was because they were married and
well settled. Therefore, the property was given in good faith to the unmarried Indiramma.
counsel further submitted that if a respondent is a trespasser, equally the
appellants have not proved any better title.
appellate court has wrongly stated that there is no explanation with regard to
the custody of the Will as it was given to respondent No.1 by Indiramma. It is
further submitted that the suspicious circumstances pointed out by the
appellants are only conjectural. Therefore, the High Court has rightly
disregarded the same. Genuineness of the Will cannot be disbelieved merely
because the Sub Registrar or the scribe was not examined. It was not mandatory
to examine either the scribe or the Sub Registrar.
presence in the house at the time when the Will was written is natural as she
was living with Puttathayamma. The description of the son in the Will as
"bachelor" instead of "divorcee"
be so material. The testator only wanted to say that he was 13 unmarried. The
appellants have failed to lead any evidence that Puttathayamma was not in a
sound and disposing mind due to the death of her son. In fact it was only
because her son had died that she bequeathed her property to Indiramma. Learned
counsel further submitted that in view of the admission about the execution of
the Will made in the subsequent suit, it cannot possible by held that the Will
was not duly proved. According to the learned counsel, admissions are the best
form of evidence. Unless it is effectively rebutted, the same can be relied
upon. He relies on the following judgments:- (1) Narayan Bhagwantrao Gosavi
Balajiwale v. Gopal Vinayak Gosavi and others, AIR 1960 Supreme Court 100;
Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and others, AIR 1974
Supreme Court 471; and (3) Gautam Sarup vs. Leela Jetly and others, (2008) 7
reply, Mr. Bhat has submitted that there is no clear admission in the
subsequent suit which was only to prevent the respondents to be away from the
movable property. In any event, admissions cannot be relied upon to dispense
with proof of the Will as required under law. He relies on the judgments in the
cases of Somnath Berman v. Dr.S.P. Raju and another, AIR 1970 Supreme Court 846
and Smt. Jaswant Kaur v. Smt. Amrit Kaur and others, AIR 1977 Supreme Court 74.
have considered the submissions made by the learned counsel for the parties. It
is not disputed that respondent No.1 is a rank outsider. He is not a lineal
descendant of Puttathayamma. He is son of Puttathayamma's sister Seethamma.
This would become clear from the genealogical graph of the family which is as
under:- Puttathayamma Sivaramaia (died in 15.11.1997) (died in 1950) | | | |
Smt. Lalithamma Subbaramaiah Smt. Kamalamma Smt. Indiramma (died in 1990) (died
1973) (died 1998) (died issueless (original plaintiff) issueless issueless
24.10.1985 (def.4) (husband Predeceased)
_____________________________________________________________ | | | | S.R.
Srinivasan B.S. Umadevi S.R. Venkat- S.R.V. S.R. Rajarao Krishnaiah Subbarao
(plff.1) (plff.2) (plff.3) (plff.4) (plff.5)
Clearly if the Will dated 18.61974 is held not to be genuine, the property
would be inherited by the appellants under Section 15 (2) of the Act. There is
no dispute on this proposition of law by either side.
question that needs determination in this case is as to 15 whether the Will
executed by Puttathayamma has been proved to be duly executed and the same was
statutory provision regarding the rules of succession in case of female Hindus
as enacted in Section 15 of the Hindu Succession Act, 1956 is as follows:
General rules of succession in the case of female Hindus.--(1) The property of
a female Hindu dying intestate shall devolve according to the rules set out in
Section 16,-- (a) firstly, upon the sons and the daughters (including the
children of any predeceased son or daughter) and the husband;
secondly, upon the heirs of the husband;
thirdly, upon the mother and father;
fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the
Notwithstanding anything contained in sub- section (1),-- (a) any property
inherited by a female Hindu from her father or mother shall devolve, in the
absence of any son or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs referred to in
sub-section (1) in the order specified therein, but upon the heirs of the
father; and (b) any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve, in the absence of any son or daughter of
the deceased (including the children of any predeceased son or daughter) not
upon the other heirs referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband."
perusal of the aforesaid provisions would show that the basic aim of Section
15(2) is to ensure that inherited property of an issueless female Hindu dying
intestate goes back to the source. It was enacted to prevent inherited property
falling into the hands of strangers. This is also evident from the
recommendations of the Joint Committee of the Houses of Parliament, which have
been duly noticed by this Court in the case of State of Punjab v. Balwant
Singh, 1992 Supp (3) SCC 108. The scheme underlying the introduction of the
aforesaid provision had been discussed as follows:
came to be incorporated on the recommendations of the Joint Committee of the
two Houses of Parliament. The reason given by the Joint Committee is found in
clause (17) of the Bill which reads as follows:
revising the order of succession among the heirs to a Hindu female, the Joint
Committee have provided that properties inherited by her from her father
reverts to the family of the father in the absence of issue and similarly
property inherited from her husband or father-in-law reverts to the heirs of
the husband in the absence of issue. In the opinion of the Joint Committee such
a provision would prevent properties passing into the hands of persons to whom
justice would demand they should not pass."
report of the Joint Committee which was accepted by Parliament indicates that
sub- section (2) of Section 15 was intended to revise the order of succession
among the heirs to a Hindu female and to prevent the properties from passing
into the hands of persons to whom justice would demand that they should not
means the property should go in the first instance to the heirs of the husband
or to the source from where it came."
Court had occasion to consider the scheme of the aforesaid Section in the case
of V. Dandapani Chettiar v. Balasubramanian Chettiar,(2003) 6 SCC 633. The
extent and nature of the rights conferred by this section is expressed as
follows:- "9. The above section propounds a definite and uniform scheme of
succession to the property of a female Hindu who dies intestate after the
commencement of the Act. This section groups the heirs of a female intestate
into five categories described as Entries (a) to (e) and specified in
sub-section (1). Two exceptions, both of the same nature are engrafted by
sub-section (2) on the otherwise uniform order of succession prescribed by
sub-section (1). The two exceptions are that if the female dies without leaving
any issue, then (1) in respect of the property inherited by her from her father
or mother, that property will devolve not according to the order laid down in
the five Entries (a) to (e), but upon the heirs of the father; and (2) in
respect of the property inherited by her from her husband or father-in-law, it
will devolve not according to the order laid down in the five Entries (a) to
(e) of sub-section (1) but upon the heirs of the husband. The two exceptions
mentioned above are confined to the property "inherited" from the
father, mother, husband and father-in-law of the female Hindu and do not affect
the property acquired by her by gift or by device under a Will of any of them.
The present Section 15 has to be read in conjunction with Section 16 which
evolves a new and uniform order of succession to her property and regulates the
manner of its distribution. In other words, the order of succession in case of
property inherited by her from her father or mother, its operation in confined
to the case of dying without leaving a son, a daughter or children of any
predeceased son or daughter."
"10. Sub-section (2) of Section 15 carves out an exception in case of a
female dying intestate without leaving son, daughter or children of a
predeceased son or daughter. In such a case, the rule prescribed is to find out
the source from which she has inherited the property. If it is inherited from
her father or mother, it would devolve as prescribed under Section 15(2)(a). If
it is inherited by her from her husband or father- in-law, it would devolve
upon the heirs of her husband under Section 15(2)(b). The clause enacts that in
a case where the property is inherited by a female from her father or mother,
it would devolve not upon the other heirs, but upon the heirs of her father.
This would mean that if there is no son or daughter including the children of
any predeceased son or daughter, then the property would devolve upon the heirs
of her father. Result would be -- if the property is inherited by a female from
her father or her mother, neither her husband nor his heirs would get such
property, but it would revert back to the heirs of her father."
noticed earlier by virtue of Section 15(2) (a) of the Act, the appellants would
inherit the property in dispute. This right is sought to be defeated by
defendant No.1 on the basis of the Will dated 18.6.1974, allegedly executed by
Puttathayamma. Defendant No.1 being the sole beneficiary under the Will claims
that the plaintiffs can not claim to `inherit' the property on the basis of
therefore, it was for defendant No.1 to prove that the Will was duly executed,
and proved to be genuine.
mode, the manner and the relevant legal provisions which govern the proof of
Wills have been elaborately dilated upon by this Court in a number of cases. We
may make a reference only to some of these decisions.
the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR
426] Gajendragadkar J. stated the true legal position in the matter of proof of
Wills. The aforesaid statement of law was further clarified by Chandrachud J.
in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369] as follows:
Stated generally, a will has to be proved like any other document, the test to
be applied being the usual test of the satisfaction of the prudent mind in such
matters. As in the case of proof of other documents, so in the case of proof of
wills, one cannot insist on proof with mathematical certainty.
Section 63 of the Succession Act requires a will to be attested, it cannot be
used as evidence until, as required by Section 68 of the Evidence Act, one
attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to the process
of the court and capable of giving evidence.
other documents, the will speaks from the death of the testator and therefore
the maker of the will is never available for deposing as to the circumstances
in which the will came to be executed. This aspect introduces an element of
solemnity in the decision of the question whether the document propounded is
proved to be the last will and testament of the testator. Normally, the onus
which lies on the propounded can be taken to be discharged on 20 proof of the
essential facts which go into the making of the will.
in which the execution of the will is surrounded by suspicious circumstances
stand on a different footing. A shaky signature, a feeble mind, an unfair and
unjust disposition of property, the propounder himself taking a leading part in
the making of the will under which he receives a substantial benefit and such
other circumstances raise suspicion about the execution of the will. That
suspicion cannot be removed by the mere assertion of the propounder that the
will bears the signature of the testator or that the testator was in a sound
and disposing state of mind and memory at the time when the will was made, or
that those like the wife and children of the testator who would normally
receive their due share in his estate were disinherited because the testator
might have had his own reasons for excluding them.
presence of suspicious circumstances makes the initial onus heavier and
therefore, in cases where the circumstances attendant upon the execution of the
will excite the suspicion of the court, the propounder must remove all
legitimate suspicions before the document can be accepted as the last will of
5. It is
in connection with wills, the execution of which is surrounded by suspicious
circumstances that the test of satisfaction of the judicial conscience has been
evolved. That test emphasises that in determining the question as to whether an
instrument produced before the court is the last will of the testator, the
court is called upon to decide a solemn question and by reason of suspicious
circumstances the court has to be satisfied fully that the will has been
validly executed by the testator.
6. If a
caveator alleges fraud, undue influence, coercion etc. in regard to the
execution of the will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the execution of the
will may raise a doubt as to whether the testator was acting of his own free
will. And then it is a part of the initial onus of the propounder to remove all
reasonable doubts in the matter."
Applying the aforesaid principles to this case, it would become evident that
the Will has not been duly proved. As noticed earlier in this case, none of the
attesting witnesses have been examined. The scribe, who was examined as DW.2,
has not stated that he had signed the Will with the intention to attest. In his
evidence, he has merely stated that he was the scribe of the Will. He even
admitted that he could not remember the names of the witnesses to the Will. In
such circumstances, the observations made by this Court in the case of M.L.
Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, [(1969) 1 SCC 573],
become relevant. Considering the question as to whether a scribe could also be
an attesting witness, it is observed as follows:
is essential that the witness should have put his signature animo attestandi,
that is, for the purpose of attesting that he has seen the executant sign or
has received from him a personal acknowledgment of his signature. If a person
puts his signature on the document for some other purpose, e.g., to certify
that he is a scribe or an identifier or a registering officer, he is not an
our opinion, the aforesaid test has not been satisfied by DW.2 the scribe. The
situation herein is rather similar to the circumstances considered by this
Court in the case of N. Kamalam v. Ayyasamy, [(2001) 7 SCC 503]. Considering
the effect of the signature of scribe on a Will, this Court observed as
effect of subscribing a signature on the part of the scribe cannot in our view
be 22 identified to be of the same status as that of the attesting
animus to attest, thus, is not available, so far as the scribe is concerned: he
is not a witness to the will but a mere writer of the will.
statutory requirement as noticed above cannot thus be transposed in favour of
the writer, rather goes against the propounder since both the witnesses are
named therein with detailed address and no attempt has been made to bring them
or to produce them before the court so as to satisfy the judicial conscience.
of scribe and his signature appearing on the document does not by itself be
taken to be the proof of due attestation unless the situation is so expressed
in the document itself -- this is again, however, not the situation existing presently
in the matter under consideration."
aforesaid observations are fully applicable in this case.
none of the attesting witnesses have been examined. Here signature of the
scribe cannot be taken as proof of attestation.
it becomes evident that the execution of a Will can be held to have been proved
when the statutory requirements for proving the Will are satisfied. The High
Court has however held that proof of the Will was not necessary as the
execution of the Will has been admitted in the pleadings in O.S.No.233 of 1998,
and in the evidence of P.W.1.
contention that the execution of the Will has been admitted by the appellants
herein had been negated by the First Appellate Court in the following manner:
"What is admitted under EXD 36 i.e. plaint in O.S No: 233/98 at Para 7 is
only about the will and not the genuineness of the will. During evidence of PW
1, it is elicited in the cross examination that he came to know about the will
of Puttathayamma as it was revealed in the written statement and that
Puttathayamma might have written the will dated 4-7-74. But PW 1 has not
admitted the genuineness of the will anywhere in his evidence. Therefore the
contention of the learned Advocate for the first respondent that the execution
of the will is admitted and therefore its genuineness is to be presumed cannot
aforesaid findings are borne out from the record produced before us, which we
have perused. There is no admission about the genuineness or legality of the
Will either in the plaint of OS No.233 of 1998 or in the evidence of PW1. The
High court committed a serious error in setting aside the well considered
findings, which the first Appellate Court had recorded upon correct analysis of
the pleadings and the evidence.
31. It is
undoubtedly correct that a true and clear admission would provide the best
proof of the facts admitted. It may prove to be decisive unless successfully
withdrawn or proved to be erroneous.
position with regard to admissions and their evidentiary value has been dilated
upon by this Court in many cases. We may notice some of them.
24 32. In
the case of Narayan Bhagwantrao Gosavi Balajiwale v.
Vinayak Gosavi (1960) 1 SCR 773 it was observed as follows:
admission is the best evidence that an opposing party can rely upon, and though
not conclusive, is decisive of the matter, unless successfully withdrawn or
the case of Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242, it has
if true and clear are by far the best proof of the facts admitted. Admissions
in pleadings or judicial admissions, admissible under Section 58 of the
Evidence Act, made by the parties or their agents at or before the hearing of
the case, stand on a higher footing than evidentiary admissions. The former
class of admissions are fully binding on the party that makes them and
constitute a waiver of proof.
themselves can be made the foundation of the rights of the parties. On the
other hand, evidentiary admissions which are receivable at the trial as
evidence, are by themselves, not conclusive. They can be shown to be
aforesaid two judgments along with some other earlier judgments of this Court
were considered by this Court in the case of Gautam Sarup v. Leela Jetly,(2008)
7 SCC 85 wherein it was observed as follows:
thing admitted in view of Section 58 of the Evidence Act need not be proved.
Order 8 Rule 5 of the Code of Civil Procedure provides that even a vague or evasive
denial may be treated to be an admission in which event the court may pass a
decree in favour of the plaintiff. Relying on or on the basis thereof a suit,
having regard to the 25 provisions of Order 12 Rule 6 of the Code of Civil
Procedure may also be decreed on admission. It is one thing to say that without
resiling from an admission, it would be permissible to explain under what
circumstances the same had been made or it was made under a mistaken belief or
to clarify one's stand inter alia in regard to the extent or effect of such
admission, but it is another thing to say that a person can be permitted to
totally resile there from."
What, therefore, emerges from the discussions made hereinbefore is that a
categorical admission cannot be resiled from but, in a given case, it may be
explained or clarified. Offering explanation in regard to an admission or
explaining away the same, however, would depend upon the nature and character
thereof. It may be that a defendant is entitled to take an alternative plea.
Such alternative pleas, however, cannot be mutually destructive of each
Examined on the basis of the law stated above we are unable to agree with the
High Court that there was no need for independent proof of the Will, in view of
the admissions made in OS No.233 of 1998 and the evidence of PW1. In fact there
is no admission except that Puttathayamma had executed a Will bequeathing only
the immovable properties belonging to her in favour of Indiramma. The First
Appellate Court, in our opinion, correctly observed that the aforesaid
admission is only about the making of the Will and not the genuineness of the
Will. Similarly, PW1 only stated that he had come to know about the
registration 26 of the Will of his grandmother favouring Indiramma through the
written statement of the first defendant. The aforesaid statement is followed
by the following statements "Other than that I did not know about the
Will. She was not signing in English. I have not seen her signing in Kannada.
There was no reason for my grand mother to write a Will favouring
Indiramma." Even in the cross- examination he reiterated that "I know
about the will written by Puttathayamma on 18.6.1974 bequeathing the properties
to Indiramma only through the written statement of the first defendant."
In view of the above we are of the opinion that the High Court committed an
error in setting aside the well-considered finding of the First Appellate
Court. The statements contained in the plaint as well as in the evidence of PW1
would not amount to admissions with regard to the due execution and genuineness
of the Will dated 18.6.1974.
our opinion, the High Court also committed a serious error by totally
disregarding the suspicious circumstances surrounding the execution of the Will.
The First Appellate Court on analysis of the entire evidence had clearly
recorded cogent reasons to conclude that the execution of the Will is
surrounded by suspicious circumstances.
First Appellate Court pointed out that the execution of the Will has not been
proved as none of the attesting witnesses have been examined. The scribe who
was examined as DW.2 nowhere stated that he had attested the Will. The animus
to attest was not evident from the document. In the Will, D.W.2 had described
himself as the scribe of the Will and signed as such.
in view of the ratio of law laid down in N. Kamalam (supra) the statutory
requirement of attestation was clearly not satisfied.
First Appellate Court also observed that the Will is not genuine, its execution
being shrouded in suspicious circumstances. It is noticed by the First
Appellate Court that although Puttathayamma had been allotted certain specific
property, there is no recital in the Will as to which of the properties had been
bequeathed to Indiramma. It is further noticed that son of Puttathayamma died
on 27.10.73. She had, therefore, inherited the property which had been allotted
to the share of the respondent. The Will does not describe the exact property
that may have been bequeathed by Puttathayamma in favour of Indiramma.
Non-description of the schedule property creates a reasonable suspicion as to
whether Puttathayamma executed the Will Ex.D7. It is noticed that if she had
the intention of 28 bequeathing all her property to Indiramma, she would have
mentioned the details of all the properties which belonged to her in the Will.
The First Appellate Court further holds that no reason has been given as to why
the Will was presented before the Sub Registrar on two separate occasions for
registration. Although the son of Puttathayamma died after having been divorced
from his wife he is described in the Will as a bachelor. No reason has been
stated in the Will as to why the other two daughters have been excluded from
the property by Puttathayamma. Since the suspicious circumstances have not been
explained by defendant No.1, the Will is not genuine. The First Appellate Court
also notices that although Indiramma is the sole beneficiary in the Will, she
was present at the time when the Will was written. She was also present in the
office of Registrar when the Will was presented for registration. This would
clearly show that Indiramma had an evil eye on the suit property and,
therefore, the descriptions of the other properties were not given. The active
participation of Indiramma in the writing and the registration of the Will may
well create a suspicion about its genuineness. We may notice here the
observations made by this Court in the case of Ramachandra v. Champabia [AIR
1965 SC 357]. This Court has held as follows:
Court also pointed out that apart from suspicious circumstances of this kind
where it appears 29 that the propounder has taken a prominent part in the
execution of the will which confers substantial benefits on him that itself is
generally treated as a suspicious circumstances attending the execution of the
will and the propounder is required to remove the suspicion by clear and
satisfactory evidence. In other words, the propounder must satisfy the
conscience of the court that the document upon which he relies in the last will
and testament of the testator."
there were suspicious circumstances, it was necessary for the defendants to
explain the same. The registration of the Will by itself was not sufficient to
remove the suspicion. The first appellate court also notices that even in cases
where the execution of the Will is admitted, at least one attesting witness of
the Will has to be examined to receive the Will in evidence. DW2, who has been
examined is the scribe of the Will, has given no plausible reasons as to why
the Will was presented twice before the Sub Registrar for registration. Nor is
it stated by this witness as to why the Will was not registered on the first
occasion. It is also held by the First Appellate Court that non-examination of
the Sub Registrar creates suspicion about the genuineness of the Will. Even the
attesting witnesses to the Will have not been examined. There is no evidence
whether the Will was read over by the Sub Registrar or anybody else before it
was registered. It is not explained as to how the Will came into possession of
defendant No.1. There is no evidence when he was put in proper custody of the
the cumulative effect of all the circumstances, the 30 First Appellate Court
has held that execution of the Will is surrounded by suspicious circumstances.
Consequently, the appeal was allowed and the judgment of the Trial Court was
High Court in its judgment seems to have misread the entire evidence. Aforesaid
findings recorded by the First Appellate Court have been brushed aside by
dubbing them as conjectural.
unable to appreciate the course adopted by the High Court.
It was so
influenced by the alleged admission made by the plaintiffs in the second suit,
it did not deem it appropriate to examine the material which formed the basis
of the findings recorded by the First Appellate Court. It appears that the
pleadings, documents and the evidence was not read by the High Court yet it concluded
that the findings of the Appellate Court were conjectural. We are unable to
endorse the view expressed by the High Court.
High court ought to have taken great care to satisfy its judicial conscience
that the execution of the Will was not surrounded by suspicious circumstances.
The Appellate Court had pointed out so many suspicious circumstances which
could not have been brushed aside as being conjectural. The findings 31 were
based on documentary evidence. It was necessary for the defendant No.1 to
answer a number of pertinent questions relating to the execution of the Will.
was also necessary for the High Court to exercise care and caution to ensure
that the propounder of the Will has removed all legitimate suspicion. We have
earlier noticed that in this case Indiramma was living with her mother
Puttathayamma at the time of her death. She was the sole beneficiary under the
Will dated 18.6.1974. Her sisters, the original plaintiff and defendant No.4
that is, Lalithamma and Kamalamma had been excluded from the inheritance. There
is no convincing reason as to why they were excluded from the inheritance. The
Will merely mentions that these two ladies are well settled in their lives
whereas Indiramma was not married. The Will does not specify which of the
properties has been bequeathed to Indiramma, although Puttathayamma has been
allotted certain specific property. Puttathayamma's son had died on 27.10.73
and the Will is stated to have been made on 18.6.1974. The Will is signed by
Indiramma, even though she is the sole beneficiary under the Will. She was
present in the office of the sub-Registrar at the time when the Will was
registered. There is also a question as to why the Will was presented for
registration on two different occasions. It appears that on the date when the
32 Will was executed Indiramma also obtained a power of attorney from her
mother which would demonstrate her anxiety to come into possession of the
property immediately. Neither the scribe (DW2) nor DW1 were able to give any
satisfactory explanation as to why the Will was not registered on the first
occasion. In such circumstances it was the duty of the of the High Court to
carefully examine the findings recorded by the lower Appellate Court together
with the relevant documents on the record to ensure that there is a proper
explanation given by defendant No.1 of the aforesaid suspicious circumstances.
This Court in Iyengar case (supra) had clearly held that cases in which the
execution of the Will is surrounded by suspicious circumstances, it may raise a
doubt as to whether the testator was acting of his own free will. In such
circumstances it is a part of the initial onus of the propounder to remove all
reasonable doubts in the matter. The presence of suspicious circumstances makes
initial onus heavier.
suspicion cannot be removed by the mere assertion of the propounder that the
Will bears signature of the testator or that the testator was in a sound and
disposing state of mind at the time when the Will was made.
our opinion, the High Court failed to exercise proper care and caution by not
thoroughly examining the evidence led by the 33 party, especially when it was
not in agreement with the reasons recorded by the First Appellate Court. In the
case of Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 this Court reiterated the
principles governing the proof of a Will which is alleged to be surrounded by
suspicious circumstances. Justice Chandrachud speaking for the Court observed
The defendant who is the principal legatee and for all practical purposes the
sole legatee under the will, is also the propounder of the will.
It is he
who set up the will in answer to the plaintiff's claim in the suit for a
one-half share in her husband's estate. Leaving aside the rules as to the
burden of proof which are peculiar to the proof of testamentary instruments,
the normal rule which governs any legal proceeding is that the burden of
proving a fact in issue lies on him who asserts it, not on him who denies it.
words, the burden lies on the party which would fail in the suit if no evidence
were led on the fact alleged by him. Accordingly, the defendant ought to have
led satisfactory evidence to prove the due execution of the will by his
grandfather Sardar Gobinder Singh.
cases where the execution of a will is shrouded in suspicion, its proof ceases
to be a simple lis between the plaintiff and the defendant. What, generally, is
an adversary proceeding becomes in such cases a matter of the court's conscience
and then the true question which arises for consideration is whether the
evidence led by the propounder of the will is such as to satisfy the conscience
of the court that the will was duly executed by the testator. It is impossible
to reach such satisfaction unless the party which sets up the will offers a
cogent and convincing explanation of the suspicious circumstances surrounding
the making of the will."
our opinion, the High Court failed to examine the entire issue in accordance
with the aforesaid principles laid down by this Court. We are, therefore,
unable to uphold the impugned judgment. The appeal is allowed. Judgment of the
High court is set aside and the judgment of the First Appellate Court i.e. the
Court of the Principal Civil Judge (Senior Division) at Mysore is restored.
..........................................J. [V.S. SIRPURKAR]
...........................................J. [ SURINDER SINGH
APRIL 22, 2010.