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.
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
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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
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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."
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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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