Murthy vs C.Saradambal

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4270 OF 2010

MURTHY & ORS. ……..APPELLANT(S)

VS.

C. SARADAMBAL & ORS. …...RESPONDENT(S)

J U D G M E N T

NAGARATHNA J.

This appeal assails the judgment and decree

dated 08th December, 2008 passed by the High Court

of Judicature at Madras, in O.S.A. No. 470 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 dismissed the suit

for grant of Letters of Administration, was set

aside and the said suit was decreed.

2. For the sake of convenience, the parties shall Signature Not Verified Digitally signed by R Natarajan Date: 2021.12.10 be referred to in terms of their status in O.P. 16:00:39 IST Reason:

No. 150 of 1993 which was converted to T.O.S. No. 2

20 of 1994, which was filed for grant of Letters

of Administration.

3. It is the case of the plaintiffs that E.

Srinivasa Pillai, father-in-law of the 1st

plaintiff, had died on 19th January, 1978 leaving

behind his last will and testament dated 04th

January, 1978. The said will was said to be

executed in the presence of two attestors. The

testator E. Srinivasa Pillai had a son, named S.

Damodaran, who died intestate on 03rd June, 1989

at Madras, leaving behind the plaintiff-wife C.

Saradambal and his two daughters viz., D. Prema,

aged 20 years and D. Deepalakshmi, aged 18 years.

The testator, apart from his son, S. Damodaran,

left behind two daughters viz., Savitri Ammal,

wife of P. M. Elumalai and Padmavathi, 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 the house in

which the testator and his family were residing,

situated at Premises No.10, Azeez Nagar II

Street, Kodambakkam, Madras-24. The daughters of 3

the testator had filed O.S. No. 5477 of 1990 on

the file of IV Assistant City Civil Judge Court,

Madras seeking partition of the said property.

Therefore, it had become necessary for the

plaintiffs to file the petition seeking Letters

of Administration.

5. Plaintiff-C.Saradambal averred that she would

undertake to duly administer the estate of the

deceased as per the will by paying the testator’s

debts and legacies and by making a full and true

inventory thereof and exhibit the same in the

Court.

6. The daughters of the testator contested the

said testament by filing a written statement.

They averred that the will was fabricated and the

signature of the testator in the said document

was forged and the same was a got-up document by

the plaintiff with the help of her husband’s

friends who were the attesting witnesses of the

will. It averred that the attestors of the will

had no association with the deceased testator, E.

Srinivasa Pillai. The defendants contended that

they looked after their father when he was on his 4

deathbed. It was further contended that deceased

testator E. Srinivasa Pillai had a paralytic

attack and was unable to write or move. It was

urged that the will had to be proved in

accordance with law by removing all suspicious

circumstances in connection with the execution of

the same, to the satisfaction of the conscience

of the Court. It was contended that the

defendants had been deprived of intestate

succession on account of the fraudulent and

forged will.

7. The defendants averred that their father died

on 19th January, 1978, that their mother had

predeceased him and their brother had also died

in 1989. The defendants also averred that the

first plaintiff got married to the brother of

defendants on 07th June, 1970. The second and

third plaintiffs were the daughters born out of

the said wedlock. The first plaintiff willfully

deserted her husband and had also filed a

Matrimonial Petition bearing No. 136 of 1988,

seeking dissolution of her marriage, by a decree

of divorce but since defendants’ brother died on 5

03rd June, 1989, the said petition for dissolution

of marriage became infructuous. The defendants

contended that the first plaintiff never cared

for their brother. It was further contended that

their brother, S. Damodaran had lived for eleven

years after the death of their father and he had

never disclosed about the execution of the will

by their father.

8. The defendants had issued a legal notice

dated 22nd June, 1989 to the plaintiff for

partition and separate possession of their two-

third share in the scheduled property and after

waiting for a period of two and a half months,

they had filed a suit for partition and separate

possession of the said two-third share of the

property.

9. It was further averred that the testator, E.

Srinivasa Pillai was completely bedridden,

incapable of writing and understanding anything

for a period of ten months prior to his death.

The name of the witnesses and the name of the

person who had drafted the will were never

disclosed. It was further averred that the 6

testator E. Srinivasa Pillai was working in Binny

and Company, Madras and was associated with well-

educated and respectable people. That the

petition seeking Letters of Administration was

filed fifteen years after the death of the

testator. Hence, the defendants sought for

dismissal of the petition seeking Letters of

Administration.

10. Having regard to the objections raised by the

defendants, the Petition was converted into

Testamentary Original Suit being T.O.S. No. 20 of

1994.

11. The learned Trial Judge on the basis of the

pleadings, framed the following issues for

consideration:

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

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

12. The learned Trial Judge dismissed the suit by

judgment and decree dated 14th January, 2000 by

answering the aforesaid issues against the

plaintiffs.

7

13. Being aggrieved by the impugned judgment and

decree passed by learned Trial Judge, the

plaintiffs preferred an appeal being O.S.A. No.

470 of 2002 before the High Court. The Division

Bench vide impugned judgment and decree dated 8th

December, 2008, allowed the appeal and decreed

the suit. Hence this appeal.

14. We have heard Mr. S. Vallinayagam, learned

counsel for the appellants, Sri K. K. Mani,

learned counsel for the respondents and perused

the material on record.

15. Learned counsel for the appellants contended

that the Division Bench of the High Court was not

right in reversing the judgment of the learned

Trial Judge of the said Court without assigning

reasons for doing so and in that regard drew our

attention to the impugned judgment. It was

submitted that the learned Trial Judge had

closely perused the evidence on record, both oral

and documentary and had rightly dismissed the

suit. However, the Division Bench of the High 8

Court in the absence of any reasoning, had

reversed the judgment of the learned Trial Judge.

16. It was next submitted that the testament, on

the basis of which the respondents sought grant

of Letters of Administration was concocted. The

father of the appellants, namely, E. Srinivasa

Pillai was bedridden prior to his death as he had

sustained a paralytic stroke and was not in a

position to sign or write and neither was he in a

sound disposing state of mind. The appellants

contended that he could not have even thought of

making the bequest of the house in which he was

residing, exclusively in favour of his son, S.

Damodaran. They contended that the very execution

of the will is shrouded in suspicious

circumstances inasmuch as even the signature

found on the controversial document is not that

of the testator. Elaborating on the same, it was

urged that the respondents had placed reliance on

Exs.P2 and P3 to demonstrate that the signature

on the said documents tallied with the signatures

of the testator on the will. However, even on a

cursory glance of the said signatures it is 9

apparent that they do not tally. It was submitted

that the attempts of the respondents have been to

knock off the house property as if it has been

bequeathed to the husband of respondent No.1 and

the father of the respondent No.2 and 3, to the

exclusion of the appellants who are the daughters

of the deceased testator. Elaborating the said

contention, it was urged that the testator died

within a period of fifteen (15) days after the

so-called execution of the will i.e., 04th

January, 1978 as the testator died on 19th

January, 1978.

17. That the appellants herein had filed the suit

for partition and separate possession of the

house property being O.S. No.5477 of 1990 before

the IV Assistant City Civil Court, Madras and in

order to defeat the rights of the appellants

herein in the house property, respondent No.1 had

concocted the will of E. Srinivasa Pillai. The

said document is a fabricated and forged document

as it had not seen the light of the day for over

fifteen years after the death of the testator and

the petition seeking grant of Letters of 10

Administration was filed only in order to seek

the imprimatur of the Court on the said document.

18. It was further contended that the attestors

of the so-called testament were not known to the

deceased testator, they are in fact known to the

first plaintiff i.e. respondent No.1 herein.

19. It was further urged that the very execution

of the will is suspicious and therefore the

learned Trial Judge had rightly dismissed the

suit of the respondents herein. However, the

Appellate Court simply reversed the judgment and

decree passed by the learned Trial Judge without

any reasoning. Hence, it was submitted that the

impugned judgment and decree of the Division

Bench of the Appellate Court may be set aside and

the judgment and decree of the learned Trial

Judge may be restored.

20. Per contra, learned counsel for the

respondents-plaintiffs in the suit, drew our

attention to the oral and documentary evidence on

record and contended that the execution of the

will had been proved in accordance with Section 11 68 of the Indian Evidence Act, 1872 and Section

63 of the Indian Succession Act, 1925. The

Appellate Court was convinced about the factum of

the execution of the will by the testator E.

Srinivasa Pillai and the fact that there were no

suspicious circumstances surrounding the

execution of the will by the testator. Therefore,

the Appellate Court has rightly set aside the

judgment and decree of the Trial Court. Hence,

the same may be confirmed.

21. We have given our thoughtful consideration to

the rival submissions made by the parties.

22. The question that arises for consideration

is, whether, the Appellate Court was justified in

setting aside the judgment and decree of the

learned Trial Judge, thereby allowing the appeal

filed by the plaintiffs-respondents herein and

consequently, decreeing the suit filed by them.

23. The relationship between the parties is not

in dispute. Deceased E. Srinivasa Pillai was the

father of the husband of first plaintiff as well

as the father of defendants being the daughters. 12

It is also not in dispute that the testator died

on 19th January, 1978. The controversy here is

with regard to the succession to his estate. If

he had died intestate, his son and daughters

would have been entitled to succeed to his estate

including the house property, equally. But the

petition was filed seeking grant of Letters of

Administration in favour of the plaintiffs, on

the basis of the testament of the deceased, E.

Srinivasa Pillai dated 04th January, 1978. It is

also not in dispute that the said testament had

not seen the light of the day for fifteen years

and only after the filing of the suit for

partition and separate possession by the

appellants, i.e. the daughters of the testator

herein, the respondents herein sought Letters of

Administration on the basis of the will of

deceased E. Srinivasa Pillai, which was said to

be executed on 04th January, 1978.

24. Before proceeding to answer the point for

determination in this appeal, it would be useful

to cull out the relevant points from the judgment 13

of the learned Trial Judge as well as the

Division Bench of the High Court.

25. The learned Trial Judge had dismissed the

suit despite the evidence of PW1, being the first

plaintiff and PW2, being one of the attestors of

the will (Ex-P1) after considering the same in

detail and had noted the following aspects:

(i) The testator E. Srinivasa Pillai who is

said to have executed the will (Ex-P1)

on 04th January, 1978 had died 15 days

later.

(ii) The will is an unregistered one.

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

practicing advocate.

(iv) The testator was also educated.

(v) That the testator was not in a sound

and disposing state of mind as he was

seriously ill and weak prior to his

death, as he was suffering from a

paralytic attack.

(vi) PW2 had deposed in his evidence that

the testator was suffering from a

paralytic attack and was unable to move 14

his right hand and right leg prior to

his death and he was confined to the

house for about ten months prior to his

death and he was unable to write.

(vii) The son of the testator was not aware

of the execution of the will and he did

not take any step for probate of the

same.

(viii) After the death of testator’s son, S.

Damodaran, his wife-plaintiff No.1,

came forward to seek Letters of

Administration.

(ix) There were proceedings for divorce

between PW1 and her husband, S.

Damodaran and she had also consented

for divorce.

(x) Though the person who wrote the will

was known to the father-in-law of PW1,

his name is not mentioned in the will

nor does the will have any date

mentioned in it.

(xi) The will (Ex-P1) had not seen the light

of the day for nearly fifteen years 15

although the testator’s son was a

practising advocate.

(xii) PW2 admitted that PW1 was outside the

room at the time of the execution of

the will whereas PW1 stated that when

the will (Ex-P1) was executed by her

father-in-law she was present. So,

there exists a discrepancy in the

versions of evidences by PW1 and PW2.

(xiii) PW2 had admitted that he had filed the

affidavit on the request of the

advocate and not on his own accord.

Therefore, no weight could be attached

to the evidence of PW2.

(xiv) Daughters of the deceased had filed a

partition suit being O.S. No. 5977 of

1990. It is only, thereafter, that

proceedings were commenced by the

plaintiffs for grant of Letters of

Administration.

(xv) Since the testator was not healthy

prior to his death and was suffering

from paralysis, he was not in a 16

position to write (sign). Hence, it is

doubtful that he had executed the will.

(xvi) The attestator himself had admitted

about the health condition of the

testator by stating that he could not

be taken to the Sub-Registrar’s office

for the registration of the will on

account of the paralytic attack.

(xvii) Execution of the will is itself

suspicious and the evidence regarding

execution of the will has not dispelled

the suspicious circumstances.

(xviii) The bequest is also questioned inasmuch

as the daughters have no share in the

house property.

26. In view of the aforesaid points, the learned

Trial Judge dismissed the 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 to be complied

with to establish proof of the will, noted that 17

only one of the attesting witnesses, namely,

Varadan was examined as PW2, as the other

attesting witness, namely, Dakshinamurthy was not

alive to be examined so as to corroborate the

genuineness of the will which is permissible in

law.

28. In Paragraphs 8 to 11 of the judgment, the

Division Bench of the High Court has observed as

under:

“8. This Court has also verified the signatures of the testator in the will with those of the signatures available in the previous documents namely, Ex-P2 school Leaving Certificate, and Ex-P3, Building Plan. On verification, this Court has no hesitation to hold that the signatures available in the will are tallied with the signatures available in the School Leaving Certificate and the Building Plan.

Though it is stated by the respondents that the legates filed matrimonial petition against the appellant, in the absence of any order thereon, this Court cannot give much importance to such proceedings. Also, the respondents filed a suit for partition of 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 that there is an inordinate delay in initiating the proceedings for 18

probate of the will. In this context, it is to be stated that the time taken and the reasons adduced for initiation of probate proceedings are the factors to be considered on the peculiar facts and circumstances of this case. Hence, the said argument fails.

10. The proof and validity of the will has to be examined on the settled propositions of law such as the evidence of the attestor, comparison of signatures of the testator, legal principles, intention of the testator and other circumstances. However, the learned single Judge proceeded on the sole ground that the will had not been probated for a long time. Therefore, the reasoning given by the learned single Judge cannot be sustained, as the legal principles are not properly follows.

11. For the foregoing reasons and in view of the discussion made above, the judgment of the learned single Judge is legally infirmed and the same is set aside. As such, this O.S.A. is allowed. No costs.

Consequently, the connected C.M.P.No.9517 of 2006 and 1492 of 2008 are closed.”

29. With the aforesaid observations, the judgment

of the learned Trial Judge was reversed by the

Division Bench.

30. Before considering the correctness of the

impugned judgment of the Division Bench of the 19

High Court, it would be useful to refer to the

following judgments of this Court on proof of

wills:

(a) One of the celebrated decisions of this Court

on proof of a will, reported in AIR 1959 SC 443 is

in the case of H.Venkatachala Iyenger vs.

B.N.Thimmajamma, wherein this Court has clearly

distinguished the nature of proof required for a

testament as opposed to any other document. The

relevant portion of the said judgment reads as

under:-

"18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the 20

requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind"

in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand 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 determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."

21

In fact, the legal principles with regard to

the proof of a will are no longer res

integra. Section 63 of the Indian Succession Act,

1925 and Section 68 of the Evidence Act, 1872, are

relevant in this regard. The propounder of the

will must examine one or more attesting witnesses

and the onus is placed on the propounder to remove

all suspicious circumstances with regard to the

execution of the will. In the above noted case,

this Court has stated that the following three

aspects must be proved by a propounder:-

"(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and 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 state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and

(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to be 22

discharged on proof of the essential facts indicated therein."

(b) In Jaswant Kaur v. Amrit Kaur and others [1977

1 SCC 369], this Court pointed out that when a

will is allegedly shrouded in suspicion, its proof

ceases to be a simple lis between the plaintiff

and the defendant. What generally is an

adversarial 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 let in by the propounder of

the will is such as would satisfy the conscience

of the Court that the will was duly executed by

the testator. It is impossible to reach such a

satisfaction unless the party which sets up the

will offers cogent and convincing explanation with

regard to any suspicious circumstance surrounding

the making of the will.

(c) In Bharpur Singh and others v. Shamsher

Singh [2009 (3) SCC 687], at Para 23, this Court

has narrated a few suspicious circumstance, as

being illustrative but not exhaustive, in the

following manner:-

23

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

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

(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.

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

(iv) The dispositions may not appear to be the result of the testator's free will and mind.

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

(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 narrated hereinbefore are not

exhaustive. Subject to offering of a reasonable

explanation, existence thereof must be taken into

consideration for the purpose of arriving at a

finding as to whether the execution of the will

had been duly proved or not. It may be true that

the Will was a registered one, but the same by

itself would not mean that the statutory 24

requirements of 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 been held to be described by this Court as suspicious circumstances:

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

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

(iii) where propounder himself takes prominent part in the

execution of will which confers on him substantial benefit.

35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Courts in B.Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449], wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.

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

25

37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there 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 the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding:

52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

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

54. It may be true that deprivation of a due share by (sic to) the 26

natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will.

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

(f) Similarly, in Leela Rajagopal and others v.

Kamala Menon Cocharan and others, [(2014) 15 SCC

570], this Court opined as under:-

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

This, is the essence of the 27

repeated pronouncements made by this Court on the subject including the decisions referred to 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

shall be considered. On a reading of will (Ex-

P1), we note that immovable property bearing

House No.6/1 Azeez Nagar, 2nd Street, Kodambakkam,

Madras – 600024 and the building situate on it

being about two grounds which was bought by the

testator in the year 1953 is the subject matter

of the bequest to his son S. Damodaran a

practising advocate at Madras. The will further

recites as under :

“I desire that this house should go to my son S. Damodaran and he must inherit without any conditions and I herein transfer it absolutely to him with all powers inclusive of disposing it off if necessary. No other person should have any claim over it. As I am sick and getting weak, I write and sign this will in the presence of these two witnesses who are present before me on this the 4th day of 28

January, 1978 and put my signature in their presence.”

At this stage we note that the will itself

recites that the testator was sick and getting

weak.

32. Learned counsel for the appellants has

adumbrated on the following suspicious

circumstances in the execution of the will. They

can be succinctly stated as under:

(i) Date of the will and date of death of the

testator being too close throws a doubt on

the sound disposing state of mind of the

testator.

(ii) Testator was bedridden prior to his death

as he was suffering from paralysis.

(iii) Attestor (PW2) being known to the first

plaintiff, the propounder of the will, but

not to the deceased testator.

(iv) The husband of the first plaintiff and son

of the testator, who was a practicing

advocate, was unaware of the execution of

the will during his lifetime.

29 (v) The signature on the will (Ex-P1) does not

tally with the signatures of the testator

on Ex-P2 (SSLC Register) and Ex-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 will to the

satisfaction of the conscience of the

Court and have not removed the suspicious

circumstances in the execution of the

will.

33. We shall now discuss each of the aforesaid

aspects.

(a) The date of the will (Ex-P1) is 04th January,

1978. The testator E. Srinivasa Pillai died on

19th January, 1978, within a period of fifteen

days from the date of execution of the will.

Even on reading of the will, it is noted that

the testator himself has stated that he was 30

sick and getting weak even then he is stated

to have “written” the will himself which is

not believable. It has been deposed by PW2,

one of the attestors of the will, that the

will could not be registered as the testator

was unwell and in fact, he was bedridden. It

has also come in evidence that the testator

had suffered a paralytic stroke which had

affected his speech, mobility of his right arm

and right leg. He was bedridden for a period

of ten months prior to his death. Taking the

aforesaid two circumstances into

consideration, a doubt is created as to

whether the testator was in a sound and

disposing state of mind at the time of making

of the testament which was fifteen days prior

to his death.

(b) No evidence of the doctor who was treating the

testator has been placed on record so as to

prove that the testator was in a sound and

disposing state at the time of the execution

of the will.

31

(c) The fact that the testator died within a

period of fifteen days from the date of the

execution of the will, casts a doubt on the

thinking capacity and the physical and mental

faculties of the testator. The said suspicion

in the mind of the Court has not been removed

by the propounder of the will i.e. first

plaintiff by producing any contra medical

evidence or the evidence of the doctor who was

treating the testator prior to his death.

(d) In this context, it would be useful to place

reliance on Section 63 of the Indian

Succession Act, 1925 which categorically

states that the testator has to sign on the

will and the signature of the testator must be

such that it would “intend” thereby to give

effect to the writing of a will. Hence, the

genuineness of the will must be proved by

proving the intention of the testator to make

the testament and for that, all steps which

are required to be taken for making a valid

testament must be proved by placing concrete

evidence before the Court. In the instant 32

case, there is no evidence as to whom the

testator gave instructions to, to write the

will. The scribe has also not been examined.

It is also not known as to whether the

assistance of an advocate or any other

trustworthy person was taken by the testator

in order to make the testament and bequeath

the property to only the son of the testator.

(e) Apart from that, Section 63(c) of the Indian

Succession Act, 1925, firstly states that the

will has to be attested by two or more

witnesses/attestators, each of whom should

have seen the testator sign on the will in his

presence, or has received from the testator, a

personal acknowledgment of his signature on

the will. Secondly, each of the witnesses

shall sign on the will in the presence of the

testator but it shall not be necessary that

more than one witness be present at the same

time, and no particular form of attestation is

necessary. The aforesaid two mandatory

requirements have to be complied with for a

testament to be valid from the point of view 33

of its execution. In the instant case, there

are two attestors namely, PW2-Varadan and

Dakshinmurthy and the latter had died. The

evidence on record has to be as per Section 68

of the Indian Evidence Act, 1872 which deals

with proof of documents which mandate

attestation. In order to prove the execution

of the document such as a testament, at least

one of the attesting witnesses who had

attested the same must be called to give

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 attestors of the

will. However, the deposition of PW2 is such

that it is fatal to the case of the

plaintiffs. The evidence of PW2 could be

highlighted as under:

(i) He was a friend of the testator and he

was frequently visiting the testator once

in two or three days.

(ii) He signed as the first attesting witness

on Ex-P1 and Dakshinmurthy signed as 34

second attesting witness and the testator

saw both the attestors signing Ex-P1.

However, he has deposed that it was not

possible to take the testator to the

Registrar’s office for registering the

will as the testator was not in a sound

condition and he was very seriously ill,

he was suffering from paralysis.

(iii) He has admitted that testator was

suffering from paralysis of right hand

and right leg and prior to his death, was

sick for about 10 months and was confined

to his house and not in a position to

write.

(iv) PW2 has also stated that he had not

disclosed about the will to S. Damodaran,

the son of the testator and during his

lifetime, S. Damodaran was unaware of the

will executed by his father.

(v) S. Damodaran, (who was a practicing

advocate) lived for about eleven years

after the execution of will (Ex-P1) and

since he was unaware of the will executed 35

by his father, he did not take steps to

seek probate of the will.

(vi) He has also admitted that he signed the

affidavit in the suit on the instructions

and as requested by the counsel.

(f) The Trial Court has not believed the evidence

of PW2. It is highly improbable that the only

son of the testator who was a practicing

advocate and on whom the bequest of the house

was made, was unaware of the execution of the

will by his father. It is unnatural that the

father would not have disclosed to his only

son about the bequest of the property,

(particularly when the son was a practicing

advocate) and had also not taken his son’s

assistance in the drafting as well as

execution of the will.

(g) Learned counsel for the appellants has drawn our

attention to 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 the

said signatures on the aforesaid documents have 36

been made at different points of time, we find

they are totally dissimilar inasmuch as the

signatures on Ex-P2 and P3 do not resemble each

other and the signature on the will (Ex-P1) is

dissimilar to the signatures of testator on Ex-P2

and P3, particularly the letter ‘E’. This fact

raises a suspicion in the mind of this Court as

to whether the signature on Ex-P1 was really that

of the testator. Further if really the testator

had himself written the will the fonts of the

recital of the will and his signature do not at

all match.

(h) It was also contended that the evidence of

PW1, the propounder of the will, does not

inspire confidence. We shall highlight the

same:

(i) PW1 has stated that Ex-P1 was executed

about fifteen days prior to the death

of the testator who was her father-in-

law and the same was in the custody of

the testator. Ex-P1 has seen light of

the day, only after the demise of the

testator’s son who was unaware of the 37

will and during the pendency of the

suit filed by the appellants herein

seeking partition and separate

possession of the property or the

estate left behind by their father.

There is no explanation regarding the

custody of the will after the demise of

the testator and for over fifteen

years.

(ii) PW1 has stated that the will was kept

in a secret place in her husband’s

almirah and that she took it out only

after fifteen days of his death. This

admission implies that only PW1 was

aware of the execution of the will as

well as the secret place where it was

kept. If the will was in the custody of

the testator as deposed by PW1, there

is no explanation as to how the

document found a place in the almirah

belonging to her husband, particularly,

when the testator was bedridden during

the last few months (ten months) before 38

his demise and was not in a position to

move around.

(iii) PW1 has stated that the will was

written by a person known to her

father-in-law but the name of the

person who wrote the will has not been

mentioned therein. There is no mention

of or evidence of the scribe of the

will.

(iv) PW1 has also admitted that no date has

been mentioned on top of the will.

Thus, the date of the execution of the

will has also not found a place on Ex-

P1. This aspect also casts a doubt as

to whether the will was executed by the

testator during his lifetime.

(v) PW1 has stated that Ex-P1 was executed

by her father-in-law and she was

present when it was executed but PW2,

the attestor has stated that PW1 was

outside the room at the time of

execution of the will.

In view of the above, we find much force in

the submission of appellant’s counsel. 39

(i) On the other hand, the evidence of DW1 in

relation to the fact that the testator was not

in a good health and he was suffering from a

paralytic attack and was not in a position to

write, is in corroboration with what PW2 has

also admitted in his evidence, that the

testator could not be taken to the sub-

Registrar’s office for the registration of the

will as he was suffering from a paralytic

stroke.

(j) It has also come in evidence that there was no

cordial relationship between the first

plaintiff and her husband S. Damodaran and in

fact proceedings for dissolution of marriage

were initiated which became infructuous on his

demise.

34. For the aforesaid reasons, we hold that the

respondents-plaintiffs have not been successful

in proving the validity of the will in accordance

with law inasmuch as the suspicious circumstances

surrounding the very execution of the will have

not been cleared by any cogent evidence, rather, 40

the genuineness of Ex-P1 remains in doubt. It is

observed that the will (Ex-P1) did not come into

existence at the instance of the testator but it

is a concocted document and has been got up after

the demise of S. Damodaran.

35. In view of the aforesaid discussion, we hold

that the respondents-plaintiffs have failed to

prove the will (Ex-P1) in accordance with law

inasmuch as they have not removed the suspicious

circumstances, surrounding the execution of the

will. Hence, Ex-P1, not being a valid document in

the eye of law, no Letters of Administration can

be granted to the respondents-plaintiffs.

36. In the circumstances, we hold that the

learned Trial Judge was right in dismissing the

suit. However, the Appellate Court being the

Division Bench has reversed the judgment and

decree passed by the Trial Court and has decreed

the suit. On extracting the relevant portions of

the judgment of the Appellate Court, which

consists of eleven paragraphs, it is found that

the same has been written in a cryptic manner. It

is observed that the judgment could be brief and 41

succinct if the Appellate Court is to dismiss an

appeal and affirm the judgment and decree of the

Trial Court. But when the judgment and decree of

the Trial court is to be reversed then it is

incumbent upon the Appellate Court to dwell into

the matter in detail and to give reasons for

reversing the same. Assigning reasons not only

makes the judgment wholesome, but is also

necessary in order to deduce and lead to just

conclusions.

37. Before parting with this case, we would like

to reiterate that in this case, the High Court

has dealt with the judgment of the learned Trial

Judge in a short cut method, bereft of all

reasoning while reversing the judgment of the

Trial Court both on facts as well as law. It is

trite that the Appellate Court has jurisdiction

to reverse, affirm or modify the findings and the

judgment of the Trial Court. However, while

reversing or modifying the judgment of a Trial

Court, it is the duty of the Appellate Court to

reflect in its judgment, conscious application of

mind on the findings recorded supported by 42

reasons, on all issues dealt with, as well as the

contentions put forth, and pressed by the parties

for decision of the Appellate Court. No doubt,

when the Appellate Court affirms the judgment of

a Trial Court, the reasoning need not to be

elaborate although reappreciation of the evidence

and reconsideration of the judgment of the Trial

Court are necessary concomitants. But while

reversing a judgment of a Trial Court, the

Appellate Court must be more conscious of its

duty in assigning the reasons for doing so.

38. In this regard, we may usefully rely upon a

judgment of this Court in Santosh Hazari v.

Purushottam Tiwari (deceased) by LRs - (2001) 3

SCC 179, wherein it has been observed that while

writing a judgment of reversal, an Appellate

Court must remain conscious of two principles.

Firstly, the findings of facts based on

conflicting evidence arrived at by the Trial

Court must weigh with the Appellate Court, more

so when the findings are based on oral evidence

recorded by the same Presiding Judge who authors

the judgment. If, on an appraisal of the 43

evidence, it is found that the judgment of the

Trial Court suffers from a material irregularity

or is based on inadmissible evidence or on

conjectures and surmises, the Appellate Court is

entitled to interfere with the finding of fact

but by assigning cogent reasons for doing so.

Otherwise, the findings of the Trial Court should

not be interfered with lightly on a question of

fact. Secondly, while reversing a finding of

fact, it is necessary that the Appellate Court

assigns its own reasons for doing so. This is

especially so in case there are further appeals

under Section 100 of the Code of Civil Procedure,

1908, as the first Appellate Court is the final

court of facts and the said findings are immune

from challenge in a second appeal.

39. In B.V. Nagesh v. H.V. Sreenivasa Murthy –

(2010) 13 SCC 530, this Court taking note of all

the earlier judgments of this Court reiterated

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 appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC has been considered by this Court in various 44

decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment 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 the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of 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 a similar effect, are the observation of

this Court in Vinod Kumar v. Gangadhar - (2015) 1

SCC 391, wherein it has been observed that in a 45

first appeal under Section 96 of the Code of

Civil Procedure, 1908, the scope and powers

conferred on the First Appellate Court are

delineated in Order XLI of the Code and grounds

raised in the appeal, reappreciation of evidence

adduced by the parties and application of the

relevant legal principles and decided case law

have to be considered while deciding whether the

judgment of the Trial Court can be sustained or

not.

41. It is also necessary to observe that the

right to appeal is a creature of statute. The

right to file an appeal by an unsuccessful party

assailing the judgment of the Original Court is a

valuable right and hence a duty is cast on the

Appellate Court to adjudicate a first appeal both

on questions of fact and applicable law. Hence,

the reappreciation of evidence in light of the

contentions raised by the respective parties and

judicial precedent and the law applicable to the

case have to be conscientiously dealt with.

42. In the instant case, the Division Bench of

the High Court has simply reversed the judgment 46

of the learned Trial Judge in the absence of

reappreciation of evidence and without giving

findings on questions of fact as well as on the

applicable law and by not reasoning as to why the

judgment of the learned Trial Judge was

erroneous.

43. In the circumstances, we set aside the

judgment and decree of the Division Bench of the

High Court dated 08th December, 2008 in O.S.A 470

of 2002 and restore the judgment of the Learned

Trial Judge passed in O.T.S No. 20/1994 dated 14th

January, 2000 by allowing instant appeal.

44. Having regard to the relationship between the

parties, they shall bear their respective costs.

45. Interlocutory applications, if any, stand

disposed.

……………………………………….….J [L. NAGESWARA RAO]

……………………….…………...J [B.V. NAGARATHNA]

NEW DELHI;

10th DECEMBER, 2021.

47