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SUPREME COURT OF INDIA
A.M.KHANWILKAR, HEMANT GUPTA, DINESH MAHESHWARI, JJ.
Shivakumar & Ors – Appellant
Versus
Sharanabasappa & Ors – Respondent
Civil Appeal No.6076 OF 2009
Decide On : 24-04-2020
(a) Indian Succession Act, 1925 - Section 61, 63 and 74 r/w Section 68, Indian Evidence Act, 1872 - proving of Will - Principles summarised. (Para 11)
(b) Indian Succession Act, 1925 - Section 61 and 63 - Suspicious circumstances - Will containing 5 typed pages on 3 different sheets of papers, not of the same colour - Placement of signatures of testator not of uniformity - Excessive space seen between typewritten contents and signatures on page number 1 and page number 5 - Use of different pens for signatures on different pages - Ink pen for first and third signatures (on page number 1 and page number 5) and ballpoint pen for the second signature (on page number 3) - No signature of testator on page number 2 and page number 4 - Additionally, existence of several blank spaces in relation to particulars of properties and some properties not correctly described - Dates mentioned with reference to Hindi Calendar and English Calendar not matching - Recital of a past event (about vacating of the shop by the tenant in the year 1990) in the manner that such event shall happen in future - In these circumstances taken together, the Will cannot be readily accepted as genuine. (Para 15, 16, 19)
(c) Will - Validity - Courts do not approach a Will with doubts but examine it cautiously and with circumspection. (Para 16)
(d) Code of Civil Procedure, 1908 - Order XLI Rule 23, 23A and 24 - Remand of matter - Appellate Court can remand the case u/r 23A if a re-trial is considered necessary - However, rule 24 enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient - In such a case appellate court should finally decide the matter - Order of remand cannot be passed in a routine manner. (Para 25)
Facts of the case:
The civil suit was filed by the plaintiff-appellants for declaration and injunction, on the ground that they had acquired ownership rights in the suit properties on the basis of a Will dated 20.05.1991 executed by the owner of the said properties Sri Sangappa; and that a trust created by the defendants on 28.05.1994, in the name “Shri Sangappa Pampanna Gadagshettar Trust, Koppal” in relation to the suit properties, was illegal, void and not binding on the plaintiffs.
The Trial Court decreed the suit.
The High Court allowed the first appeal.
Finding of the Court:
The Will cannot be readily accepted as genuine.
Result: Appeal dismissed.
Courts examine a Will cautiously and with circumspection rather than approaching it with preconceived doubts. (!)
A Will must be executed in compliance with Section 63 of the Indian Succession Act, 1925, requiring the testator's signature (or mark) placed to give effect to the document as a Will, and attestation by at least two witnesses who have seen the testator sign or acknowledge the signature in their presence. (!) (!) (!) (!) (!)
Proof of a Will requires satisfaction under Section 68 of the Indian Evidence Act, 1872, mandating examination of at least one attesting witness (if alive and capable) to prove execution. (!) (!) (!)
The propounder bears the initial onus to prove due execution, the testator's sound disposing state of mind, understanding of the dispositions, and voluntary signing; ordinarily, proof of capacity, signature, and attestation suffices absent suspicion. (!) (!) (!)
Suspicious circumstances (e.g., shaky signature, feeble mind, unnatural dispositions, exclusion of heirs, propounder's active role) impose a heavier onus on the propounder to dispel them with cogent evidence satisfying the court's judicial conscience; mere statutory proof is insufficient if suspicions persist. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Not every irregularity is "suspicious"; circumstances must be real, germane, and valid—not mere fantasy or conjecture—and explained to align with normal conduct. (!) (!)
Will comprised 5 typed pages on 3 sheets of differing colors (not from same stock), signaling abnormality in preparation. (!) (!)
Testator's signatures placed non-uniformly: excessive space below typed matter on pages 1 and 5 (suggesting pre-fixation), closer on page 3; typed name below signatures appeared overlaid. (!) (!)
Different pens used for signatures: ink pen on pages 1 and 5 (different ink shades), ballpoint on page 3; explanation (ink pen failed) implausible as ink pen reused after ballpoint. (!) (!) (!) (!)
No testator signatures on pages 2 and 4 (back sides of sheets 1 and 2), breaching Section 63(b) intent to authenticate entire document; front-only signing unexplained and unnatural. (!) (!) (!) (!)
Content anomalies: blank spaces in property details, incorrect descriptions, mismatched Hindi/English dates, past event (1990 tenant vacation) recited as future; opening recital of accident premonition uncanny given testator's 1994 death. (!) (!) (!) (!) (!) (!)
Cumulative abnormalities (paper, placement, pens, missing signatures, content flaws) indicate fabrication on pre-signed blanks, unremoved by propounders; handwritten draft in sealed envelope with executed Will unnatural for completed document. (!) (!) (!) (!)
Failure to examine key witness (Swamiji, before whom Will allegedly opened) and reliance on interested witnesses (family, advocate linked to propounders) heighten suspicion. (!) (!)
Under Order XLI Rule 23A CPC, appellate court may remand for re-trial if Trial Court's decree reversed and re-trial necessary; however, Rule 24 mandates final determination if record evidence suffices, avoiding routine remands. (!) (!) (!) (!) (!) (!) (!) (!)
No remand warranted where parties fully led evidence, Trial Court erred in appreciation (brushing aside suspicions), and appellate court can resolve on existing record without lacuna-filling. (!) (!) (!)
JUDGMENT :
DINESH MAHESHWARI, J.
PRELIMINARY AND BRIEF OUTLINE
1. By way of this appeal, the plaintiff-appellants have challenged the judgment and decree dated 26.10.2007 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 910 of 2001 whereby, the High Court reversed the judgment and decree dated 12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppal in Original Civil Suit No. 56 of 1994.
1.1. The civil suit aforesaid was filed by the plaintiff-appellants for declaration and injunction, essentially with the submissions that they had acquired ownership rights in the suit properties (described in Schedules A to D attached to the plaint) on the basis of a Will dated 20.05.1991 executed by the owner of the said properties Sri Sangappa son of Pampanna Shettar of Koppal; and that a trust created by the defendants on 28.05.1994, in the name “Shri Sangappa Pampanna Gadagshettar Trust, Koppal” in relation to the suit properties, was illegal, void and not binding on the plaintiffs. The contesting defendants i.e., defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while questioning the genuineness of the alleged Will dated 20.05.1991. The defendant No. 7, one of the erstwhile trustees of the said trust, however, admitted and endorsed the claim of the plaintiffs.
1.2. After framing necessary issues and after taking the oral and documentary evidence adduced by the parties, the Trial Court, in its judgment dated 12.09.2001, decided the principal issue relating to the said Will dated 20.05.1991 in favour of the plaintiffs and, while also returning its findings on other necessary issues in favour of the plaintiffs, proceeded to decree the suit with declaration that the trust created by the defendants on 28.05.1994 was not binding on the plaintiffs, particularly in relation to the suit properties; and that the plaintiffs were owners of the suit properties as claimed. The Trial Court also issued injunction against defendant Nos. 1 to 5 that they shall not interfere with the plaintiffs’ peaceful possession and enjoyment of the suit properties.
1.3. The judgment and decree so passed by the Trial Court were questioned by the contesting defendants in the High Court by way of the said first appeal. The High Court, in its impugned judgment dated 26.10.2007 proceeded to allow the appeal while reversing the decision of Trial Court on the principal issue relating to the genuineness of the Will in question. The High Court found several unexplained suspicious circumstances as also discrepancies in the Will in question and held that the alleged Will dated 20.05.1991 was not a genuine document. Being aggrieved, the plaintiffs have preferred the instant appeal.
THE LEAD PERSONS, PARTIES, WITNESSES AND DOCUMENTS AS ALSO THE PROPERTIES INVOLVED
2. It is but apparent that genuineness of the Will dated 20.05.1991, said to have been executed by Sri Sangappa son of Pampanna Shettar of Koppal, allegedly bequeathing the suit properties to the plaintiffs, is in question in this case.
3. For comprehension of the subject-matter and for effective determination of the questions raised in this appeal, we may take note of the principal persons involved in the matter with their respective roles as also the documents and the properties in question as infra:
3.1. The testator of the Will in question:
Late Sri Sangappa son of Pampanna Shettar of Koppal. He was a businessman and was also the Chairman of Sri Gavisiddeshwara V.V. Trust, Koppal (which is different than the trust questioned in the suit). Late Smt. Mahantamma was his wife. Undisputedly, both the testator and his wife died in a car accident on 20.05.1994. The testator and his wife did not have any surviving children, as their children had died in infancy and they were issueless on the date of their death.
3.2. The plaintiffs (the appellant Nos. 1 to 3 herein): The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj, all sons of Basetteppa, claim to be the legatees
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