HINDU SUCCESSION ACT WOMEN PROPERTY- PROOF OF WILL -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 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.- 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 as follows: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. In other 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. In 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." - In 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.

 IN THE SUPREME COURT OF INDIA
                  CIVIL APPELLATE JURISDICTION




                   CIVIL APPEAL NO.4623 OF 2005




S.R. SRINIVASA & ORS.                                .....APPELLANTS




                                   VERSUS




S. PADMAVATHAMMA                                      ...RESPONDENT






                          JUDGMENT






SURINDER SINGH NIJJAR, J.




1.    This 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.


In these circumstances, the legal representatives of the original


plaintiffs have filed the present appeal by special leave in this Court.






2.    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.


Lalithamma (daughter) who died in 1990, was the original plaintiff.


Subbaramaiah     (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 Indiramma.








                                                                           2
3.    Since 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.


Defendant No.1 had declined to hand over the title deeds of the


schedule property as well as the bank deposit receipts.






4.    The 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 deceased Lalithamma.






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   intestate   succession.


Testamentary 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.






                                                                       4
Defendant No.1, on the other hand, is the son of Seethamma, sister of


Puttathayamma. He denied the entire claim made by the plaintiffs.


He 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.


Defendant 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.


Although Chalapati Rao did not beget any children with Indiramma,


he died leaving four sons and two daughters from his first wife.


According to the first defendant, the legal heirs of Chalapati Rao


would have preference over the appellants and defendant No.4.


Therefore, under any circumstances, no relief could be granted to


them.






8.      In 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.






9.      With   these   pleadings   parties   led   their   evidence.   Upon


consideration of the entire material, the suit filed by the appellants


herein was dismissed by the Trial Court.






                                                                          5
10.   The 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.






11.     The 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 property.


After the death of Puttathayamma, plaintiff and defendant No.4 were


residing in their matrimonial homes away from Puttathayamma.


Defendant No.1 had cremated Indiramma. Appellant and defendant


No.4    had   not   been   present   at   the   time   of   the     cremation.


Subsequently, 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.


In the 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.






12.   Aggrieved against this, defendant No.1 filed Regular Second


Appeal No.641 of 2003 in the High Court of Karnataka, Bangalore.








                                                                         8
The 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.
            Raghupathy, 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."






13.   The 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.


In that 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.


Consequently, 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.






14.   Mr. 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.


Therefore, his examination as a witness would not cure the defects.


The High 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.


According 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;
(2) State of Punjab vs. Balwant Singh and others, 1992 Supp (3)
    Supreme Court Cases 108;
(3) V. Dandapani Chettiar vs. Balasubramanian Chettiar (Dead)
    by L.Rs. and Others, (2003) 6 Supreme Court Cases 633;
(4) 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.






15.   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.


Therefore, 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.






16.   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.


Learned counsel further submitted that if a respondent is a


trespasser, equally the appellants have not proved any better title.


The first 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.


Indiramma's 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"


would not 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;
(2) 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 SCC 85.






17.   In 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.








                                                                   14
18.        We 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)








19. 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.


The only 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 genuine.






20.   The 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:


             "15. 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;
            (b) secondly, upon the heirs of the husband;
            (c) thirdly, upon the mother and father;
            (d) fourthly, upon the heirs of the father; and
            (e) lastly, upon the heirs of the mother.
            (2) 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."








                                                                    16
21.   A 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:


               "It 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:
               "While 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."
               15. The 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 pass.
            That means the property should go in the first
            instance to the heirs of the husband or to the
            source from where it came."




                                                                  17
22.   This 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."






                                                                   18
           "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."




23.   As 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 intestate succession.


Undoubtedly, therefore, it was for defendant No.1 to prove that the


Will was duly executed, and proved to be genuine.








                                                                      19
24.   The 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.






25.   In   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:




                "1. 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.
               2. Since 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.
               3. Unlike 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
            propounder can be taken to be discharged on




                                                                        20
proof of the essential facts which go into the
making of the will.
   4. Cases 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.
The 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 the testator.
   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."




                                                       21
26.   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:


            "It 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 attesting witness."




27.   In 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 follows:


            "26.The 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 witnesses."
            "The 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.
            The 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.
            Presence 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."




28.     The aforesaid observations are fully applicable in this case.


Admittedly, none of the attesting witnesses have been examined. Here


signature of the scribe cannot be taken as proof of attestation.


Therefore, 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.






29.   The 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:






                                                                   23
           "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 be accepted"






30.   The 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.


The legal 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.


Gopal Vinayak Gosavi (1960) 1 SCR 773 it was observed as follows:


            "An 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 proved erroneous."




33.    In the case of Nagindas Ramdas v. Dalpatram Ichharam,


(1974) 1 SCC 242, it has been observed:


               "Admissions, 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.
            They by 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 wrong."




34.     The 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:


            "16.A 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 therefrom."






            "28. 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 other."






35.     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.






36.     In 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.








                                                                          27
37.    The 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.


Therefore, in view of the ratio of law laid down in N. Kamalam


(supra) the statutory requirement of attestation was clearly not


satisfied.






38.   The 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:






      "This 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."




39.   Since 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 Will.


Considering 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 set


aside.






40.      The 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.


We are 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.








41.      The 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.






42.   It 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.


Such 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.






43.   In 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 as follows:


            "8. 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.
            In other 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.




            9. In 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."




                                                                    34
44.   In 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.
NEW DELHI;                             [ SURINDER SINGH NIJJAR ]
APRIL 22, 2010.

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