REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4623 OF 2005

S.R. SRINIVASA & ORS. .….APPELLANTS

VERSUS

S. PADMAVATHAMMA …RESPONDENT

J U D G M E N T

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

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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 4

th

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 4

th

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 5

th

day, the 4

th

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.

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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

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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 5

th

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

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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 1

st

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 1

st

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 PW1-1

st

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.

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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 KrishnaiahSubbarao

(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.”

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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.

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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.

35