Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9282 OF 2010

LEELA RAJAGOPAL & ORS. … APPELLANT (S)

VERSUS

KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)

WITH

CIVIL APPEAL NO. 9286 OF 2010

CIVIL APPEAL NO. 7004 OF 2012

J U D G M E N T

RANJAN GOGOI, J.

1. All the three appeals being directed against the

common judgment and order of the High Court dated

18.08.2009 were heard analogously and are being disposed of

by this order.

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Page 2 2.In the present appeals, which challenge a judgment of

reversal passed by a Division Bench of the High Court of

Madras, determination of what is essentially a question of fact

confronts this Court exercising its jurisdiction under Article

136 of the Constitution. The said question is with regard to

the validity and legality of a Will dated 11.1.1982 executed by

one K.P. Janaki Amma, the mother of the appellants and the

first respondent. The learned Trial Judge by his order dated

23.01.2001 dismissed the probate proceedings instituted by

the first respondent (later converted into a Suit being T.O.S.

No. 16 of 1994) by holding that the execution of the Will

dated 11.1.1982 is surrounded by a host of suspicious

circumstances rendering the same legally unacceptable. The

aforesaid view of the learned Trial Judge of the High Court

having been overturned by the Division Bench of the High

Court by impugned order dated 18.08.2009, the present

appeals have been filed.

3.We have heard Mr. Krishnan Venugopal and Mr. Dhruv

Mehta, learned senior counsels as well as Mr. T. Harish Kumar

2

Page 3 learned counsel for the appellants and Mr. Vijay Hansaria,

learned senior counsel appearing for respondent No. 1.

4.Testator Late Janaki Amma had initially executed a Will

dated 28.12.1981 bequeathing house property bearing No. 8,

Malony Road, T. Nagar, Madras-17 in favour of the first

respondent Kamala Menon Cochran and her grand-daughter

Geetha (daughter of her predeceased daughter Leela). The

said Will, inter alia, contained a recital that the testator had 4

sons. In the Will dated 28.12.1981 the testator had

acknowledged that her sons are all well settled in life and had

properties purchased in their names during the life time of

their father. The testator had further stated that she had

suffered extreme bereavement on the death of her daughter

Leela which occurred on 02.02.1975 and therefore out of the

deep attachment for her grand-daughter, Geetha, and also as

her second daughter K.P. Kamala Menon i.e. respondent No. 1

aged 46 years who is a Principal in a College and a spinster

she is bequeathing the house property in favour of her grand-

daughter and her daughter to the exclusion of her sons. The

3

Page 4 said Will dated 28.12.1981 was superseded/revoked by a

subsequent Will dated 11.1.1982 which contained similar

recitals as in the first Will dated 28.12.1981 except for the

fact that instead of 4 sons the testator mentioned that she

had 5 living sons. After the death of Janaki Amma which

occurred on 27.04.1991 the respondent No. 1 had instituted a

probate proceedings which was later converted into a suit, as

the Will was disputed by the sons of the deceased.

5.The appellants who were the defendants in the suit and

respondents before the High Court had contested the legal

validity of the Will dated 11.1.1982 by asserting that the same

was not a valid instrument of conveyance executed on the

free volition of the testator; rather it was dictated at the

instance of the first respondent-daughter who had exercised

undue influence and coercion on the testator. To substantiate

the contentions advanced, the contesting defendants had led

evidence to show that the Will was executed in circumstances

which give rise to serious doubts, with regard to its voluntary

execution by the testator.

4

Page 5 6.The learned Trial Court on a consideration of the cases of

the parties and the evidence and materials adduced took note

of the following circumstances surrounding the execution of

the Will :

(i)No specific reason was disclosed as to why

the sons i.e. the present appellants had been

excluded from the Will;

(ii)At the time of execution of the Will the

respondent No. 1 had come down from

Tirupathi where she was working as a college

teacher/Principal to Madras and was staying

with the mother i.e. the testator;

(iii)Only a fortnight earlier to the execution of

the Will i.e. on 10.12.1981 the testator had

written a letter (Ex. P8) to one of her sons

Thangamani (Predecessor-in-interest of

appellants in C.A. No. 9282 of 2010)

expressing her intention to partition the

house property, which was the subject matter

of Will, equally among all the children;

5

Page 6 (iv)Non-production of the original copy of the

Will;

(v)The discrepancy in the evidence of the

witnesses of the plaintiff with regard to the

place of execution of the Will; and

(vi)The prominent part played by the plaintiff

(respondent No. 1 herein) in the registration

of the Will.

These circumstances, according to the learned Trial

Court, were suspicious enough to justify a conclusion that the

Will ought not to be accepted as a valid instrument executed

on the free will and volition of the testator.

7.In appeal, the High Court, on consideration of the

grounds and reasons which had persuaded the learned Trial

Court to take the above view, thought it proper to disagree

with the same and reverse the consequential findings. It may

be noticed, at this stage, that in its very elaborate order the

High Court had gone into each of the circumstances

6

Page 7 mentioned above; the evidence in support thereof as adduced

by the parties and the arguments advanced before reversing

the findings of the learned Trial Court.

8.Learned counsels for the appellants, in all the three

appeals before us, submitted that between 11.1.1982 i.e.

alleged date of execution of the Will and 27.4.1991 i.e. date of

death of the testator, the beneficiaries under the Will had not

informed anybody about the existence of the Will which

according to the learned counsel is unnatural. Pointing out

the evidence with regard to the place of execution of the Will,

learned counsel have contended that there is an apparent

inconsistency in this regard inasmuch as while in the

verification submitted alongwith the probate petition as

required under Sections 281 and 282 of the Indian Succession

Act, 1925 PW-3 had claimed that the Will was executed in the

house of the testator, in her evidence, PW-3, had stated that

the same was executed in the office of the Sub-Registrar.

However, PW-4, the Sub-Registrar who was examined did not

categorically depose about the place where the Will was

executed. Reference has been made by the learned counsels

7

Page 8 for the appellants to other suspicious circumstances,

enumerated hereinabove, to contend that the same are

sufficient and adequate to justify rejection of the Will in

question. Specifically, it was argued that no explanation has

been offered for non-production of the original Will and the

High Court has accepted the story of loss of the Will on the

mere statement of the first respondent. On the said basis it

is contended that the first respondent, as the Plaintiff, could

not have led secondary evidence in support of the Will in the

absence of clear and convincing proof of the loss of the

original Will. Bringing in a different set of attesting witnesses

in place of the witnesses who had attested the execution of

the first Will dated 28.12.1981; the non-examination of the

attesting witness Seetha Padmanabhan and the examination

of the second witness (PW-3) Jaya Lakshmi who was a

colleague of the plaintiff are other circumstances which the

learned counsel for the appellants contends to be highly

suspicious. The absence of any evidence to show the lack of

cordial relationship between the testator and her sons and the

fact that defendant No. 4 i.e. one of the sons was actually

8

Page 9 looking after the mother has also been stressed upon to point

out that there was no reason to exclude the sons under the

Will. In fact, learned counsels for the appellants have pointed

out that PW-2 and PW-3 had clearly and categorically stated

that the relationship between the testator and her sons was

good. It is further argued that the letter dated 10.12.1981

(Ex. P8) of the mother to one of the sons, properly read,

indicates a very cordial relationship and the purport thereof

has been thoroughly misinterpreted by the High Court to

come to the impugned findings and conclusions. The lack of

knowledge of English on the part of the testator has also been

cited as another circumstance to justify its rejection. Reliance

has been placed on behalf of the appellants on the decision of

this Court in H. Venkatachala Iyengar Vs. B.N.

Thimmajamma and Others

1

as well as on a more recent

pronouncement in Bharpur Singh and Others Vs.

Shamsher Singh

2

to contend that active participation of the

first respondent in execution and registration of the Will ought

to be viewed by us as raising serious doubts with regard to

1

1959 Supp (1) SCR 426

2

2009(3) SCC 687

9

Page 10 the voluntary execution of the Will by the testator. Two other

decisions of this Court in Rani Pnrnima Debi and Another

Vs. Kumar Khagendra Narayan Deb and Another

3

and

Apoline D’souza Vs. John D’souza

4

have also been placed

to contend that the absence of any evidence to show that the

Will was read over and explained to the testator, in view of

her lack of knowledge of English, would be crucial for

determination of the authenticity of the Will in question.

9.Opposing the arguments advanced on behalf of the

appellants, Shri Vijay Hansaria, learned senior counsel

appearing for respondent No. 1 has argued that the

acceptance or rejection of the Will, in the ultimate analysis

would depend on the satisfaction of the judicial conscience of

the Court with regard to its due execution. Shri Hansaria has

submitted that no single circumstance would be

determinative of the question and it is the cumulative effect

thereof which would be vital to the adjudication required to be

made by the Court. The mere participation of the first

respondent in the execution and registration of the Will; her

3

(1962) 3 SCR 195

4

2007 (7) SCC 225

10

Page 11 presence in Madras at the time of execution of the Will will in

no way affect the validity thereof, it is contended. Insofar as

the discrepancy in the place of execution of the Will is

concerned, Shri Hansaria has pointed out that the verification

filed alongwith the application for probate was in the standard

form prescribed by the Original Side Rules of the High Court of

Judicature at Madras (Form No. 55 which mentions the place

of execution as the House of …….). Insofar as the loss of the

original Will is concerned it is submitted that the same was in

custody of the testator and was found to be missing only after

her death. It is in these circumstances that the probate

proceedings were instituted on the basis of the certified copy

of the Will which is authorised under the provisions of the

Indian Succession Act. Insofar as the issue with regard to

knowledge of English of the testator is concerned, apart from

pointing out the relevant part of the evidence of the witnesses

to show that the testator could read and understand English,

it is argued that PW-4 (Sub-Registrar) had deposed that in all

cases of registration the testator is asked whether he/she is

aware of the contents of the Will. Shri Hansaria has cited the

11

Page 12 decision of this Court in Pentakota Satyanarayana and

Others Vs. Pentakota Seetharatnam and Others

5

to

contend that mere active participation in the registration of

the Will by itself would not be a vitiating factor. Reliance has

also been placed on two decisions of this Court in Mahesh

Kumar (Dead) by Lrs. Vs. Vinod Kumar and Others

6

and Ved Mitra Verma Vs. Dharam Deo Verma

7

to show

that mere exclusion of the other heirs will not vitiate the

disposition made by a Will.

10.A Will may have certain features and may have been

executed in certain circumstances which may appear to be

somewhat unnatural. Such unusual features appearing in a

Will or the unnatural circumstances surrounding its

execution will definitely justify a close scrutiny before the

same can be accepted. It is the overall assessment of the

Court on the basis of such scrutiny; the cumulative effect of

the unusual features and circumstances which would weigh

with the Court in the determination required to be made by

5

2005 (8) SCC 67

6

2012 (4) SCC 387

7

2014 (9) SCALE 219

12

Page 13 it. The judicial verdict, in the last resort, will be on the

basis of a consideration of all the unusual features and

suspicious circumstances put together and not on the

impact of any single feature that may be found in a Will or

a singular circumstance that may appear from the process

leading to its execution or registration. This, is the essence

of the repeated pronouncements made by this Court on the

subject including the decisions referred to and relied upon

before us.

11.In the present case, a close reading of the Will

indicates its clear language, and its unambiguous purport

and effect. The mind of the testator is clearly discernible

and the reasons for exclusion of the sons is apparent from

the Will itself. Insofar as the place of execution is

concerned, the inconsistency appearing in the verification

filed alongwith the application for probate by PW-3 and the

oral evidence of the said witness tendered in Court is

capable of being understood in the light of the fact that the

verification is in a standard form (Form No. 55) prescribed

13

Page 14 by the Madras High Court on the Original Side, as already

noticed. Besides, in the facts of the present case the

participation of the first respondent in the execution and

registration of the Will cannot be said to be a circumstance

that would warrant an adverse conclusion. The conduct of

the first respondent in summoning her friend (PW-3) to be

an attesting witness and in taking the testator to the office

of the Sub Registrar should, again, not warrant any adverse

conclusion. It also cannot escape notice that the Will dated

11.1.1982 is identical with the contents of the earlier Will

dated 28.12.1981. Insofar as the execution of the Will

dated 28.12.1981 and its registration is concerned no

active participation has been attributed to the first

respondent. The change of the attesting witnesses and the

non-examination of Seetha Padmanabhan who had attested

the second Will dated 11.1.1982 has been sufficiently

explained.

12.The lack of knowledge of English even if can be

attributed to the testator would not fundamentally alter the

14

Page 15 situation inasmuch as before registration of the Will the

contents thereof can be understood to have been explained

to the testator or ascertained from her by the Sub

Registrar, PW-4, who had deposed that such a practice is

normally adhered to. The non-production of the original

Will and reliance on the certified copy thereof is a

circumstance which has been reasonably explained by the

first respondent (plaintiff). The original Will, after its

execution on 11.1.1982, was in the custody of the testator

and it is only on the day or her death i.e. 27.4.1991 that the

first respondent (plaintiff) could find that the Will was

missing from the envelope marked ‘KPP Will’. The stand of

the plaintiff that the original Will was lost while in the

custody of her mother and her knowledge of such loss on

the day of her mother’s death cannot be disbelieved merely

because no report in this regard was lodged before the

police.

13.All the unusual and allegedly suspicious circumstances

being capable of being understood in the manner indicated

above, we cannot find any fault with the conclusions reached

15

Page 16 by the High Court while reversing the judgment of the learned

Trial Court.

14.Before parting we would like to observe that the very

fact that an appeal to this Court can be lodged only upon

grant of special leave to appeal would indicate the highly

circumscribed nature of the jurisdiction of this Court. In

contrast to a statutory appeal, an appeal lodged upon grant of

special leave pursuant to a provision of the Constitution would

call for highly economic exercise of the power which though

wide to strike at injustice wherever it occurs must display

highly judicious application thereof. Determination of facts

made by the High Court sitting as a first appellate court or

even while concurring as a second appellate court would not

be reopened unless the same give rise to questions of law

that require a serious debate or discloses wholly unacceptable

conclusions of fact which plainly demonstrate a travesty of

justice. Appreciation or re-appreciation of evidence must

come to a halt at some stage of the judicial proceedings and

cannot percolate to the constitutional court exercising

jurisdiction under Article 136.

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Page 17 15.We, accordingly, dismiss these appeals affirm the order

dated 18.08.2009 passed by the Division Bench of the High

Court in Original Side Appeal No. 185 of 2001. However, in

the facts and circumstances of the case, we make no order as

to cost.

...………….…………………J.

[RANJAN GOGOI]

..….…....……………………J.

[R.K. AGRAWAL]

NEW DELHI,

SEPTEMBER 08, 2014.

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