V. PRABHAKARA versus BASAVARAJ K. (DEAD) BY LR. & ANR. on 7 October 2021

[2021] 11 S.C.R. 377

V. PRABHAKARA

v.

BASAVARAJ K. (DEAD) BY LR. & ANR.

(Civil Appeal Nos.1376-1377 of 2010)

OCTOBER 07, 2021

[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]

Will – Indian Succession Act – s.63 – Evidence Act – s.68 –Code of Civil Procedure, 1908 – s.96 – Suit for declaration andpossession of suit property – Appellant claimed title over the propertyon the basis of registered Will (Ext.P4) executed by the owner –Respondents admitted execution of Ext.P4, however sought dismissalof suit in view of a subsequent unregistered Will (Ext.D1), allegedlyexecuted by the owner in favour of respondent no.2 (minor son ofrespondent no.1-erstwhile brother-in-law of the appellant) – Suitdecreed by trial court – First Appellate Court dismissed the suit –Review, dismissed – On appeal, held: A testamentary court is not acourt of suspicion, but that of conscience – There was no room forsuspicion over the Will when the testatrix was accompanied by thesister of the appellant and the Will was attested by his brother andwhen both did not raise any issue – Further, respondents did notdeny the factum of the execution of Ext.P4 – The very fact that theyrelied upon Ext.D1, which took note of Ext.P4 as validly done, therewas no need for any suspicion on the part of the High Court –Mere exclusion of either brother or sister per se would not create asuspicion unless it is surrounded by other circumstances creatingan inference – Appellant duly complied with the mandate of s.63,Succession Act along with s.68, Evidence Act – Appellate Courtunnecessarily created suspicion, when there was none – AppellateCourt did not consider relevant materials and substituted its ownviews when not warranted – Judgment of the Appellate Court asconfirmed in review, set aside – Decree of trial court restored.

Code of Civil Procedure, 1908 – s.96 – Appellate Court, powerunder – Scope and ambit of – Discussed.

Evidence Act, 1872:

ss.3, 8 – Held: When a party makes a claim based onrevocation of earlier Will, as indicated in the subsequent Will, the

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Aacknowledgment of the former Will would form part of a conductleading to a relevant fact vis-à-vis a fact in issue.

ss.17, 58 – Held: When a party admits execution of a Will,which is otherwise proved in accordance with s.63, Indian SuccessionAct and s.68, Evidence Act, it becomes a relevant fact duly proved –BIndian Succession Act – s.63 – Evidence Act – s.68.

s.68 – Held: s.68 is to be followed mandatorily for proving aWill – This provision has to be seen and read alongwith s.63,Succession Act – Indian Succession Act – s.63.

Registration Act, 1908 – ss.17, 18, 27 – Held: Registration ofCa Will is only an additional/attending circumstance in proving itwith the rebuttable presumption available u/s.114(e) of EvidenceAct – Evidence Act, 1872 – s.114(e), 115.

Code of Civil Procedure, 1908 – Or. VI, VIII – Pleadings –Held: A relief can be on the basis of pleadings alone – Evidence isDalso to be based on such pleadings – Only exception would bewhen the parties know each other’s case very well and a pleadingis implicit in an issue.

Allowing the appeals, the Court

Conclusion

HELD: 1. Section 3 of the Indian Evidence Act defines “aEfact”. Conduct of a party would be construed as a fact underSection 8. Such a conduct may either be a previous or subsequentone. It is the product of a motive or a preparation. When evidenceis given on the conduct of a party and if it is proved to thesatisfaction of the court particularly when it involves an admission,Fadequate weightage is required to be given. Such a conduct wouldinclude a silence emanating from a party who is expected to speakand express. When a party makes a claim based upon revocationof the earlier Will, as indicated in the subsequent one, the saidacknowledgement of the former would form part of a conductleading to a relevant fact vis-à-vis a fact in issue. Section 17Gdefines “an admission” which would include a statement bothoral and documentary. When such an admission is clear andunequivocal, there is no need to prove it while taking judicialnotice. Under Section 58, a fact admitted need not be provedunless the court warrants it. Thus, in a case where a party admits H

the execution of the document in the nature of a Will, which isotherwise proved in accordance with Section 63 and Section 68of the Indian Succession Act and Indian Evidence Act respectively,it becomes a relevant fact duly proved, in the absence of anydiscretion by the court. The exercise of discretion is a judicialone and therefore, there must be a basis in asking a party toprove it otherwise. Section 68 speaks of a requirement of provingthe execution of a document required by law to be attested. Thisprovision being mandatory as the word employed is “shall”,meaning thereby it shall not be used as evidence unless oneattesting witness at least has been called for to prove itsexecution. When it comes to proving a Will, Section 68 of the Actis mandatorily to be followed. This provision has to be seen andread along with Section 63 of Indian Succession Act which notonly mandates a compulsory attestation but reiterates complianceof section 68 of the Indian Evidence Act. Section 114 facilitates acourt to presume existence of certain facts. As the word employedbeing “may”, it is a rebuttable presumption. Under Section 114(e)there is a presumption of judicial and official acts having beenregularly and duly performed. The principle governing estoppelis defined under Section 115 of the Act. [Paras 14-18][385-C-H;386-A-C]

2. The registration of a Will is only an additional or attendingcircumstance in proving it with the rebuttable presumptionavailable under Section 114(e) of the Indian Evidence Act.[Para 19][386-E]

3. Order VI of the Code while defining the word “pleading”makes it applicable on even terms to both a plaint and writtenstatement. A relief can only be on the basis of the pleadings alone.Evidence is also to be based on such pleadings. The onlyexception would be when the parties know each other’s case verywell and such a pleading is implicit in an issue. Additionally, acourt can take judicial note of a fact when it is so apparent on theface of the record. [Para 20][386-F; 387-A-B]

4. The first appellate court while exercising power underSection 96 can re-do the exercise of the trial court. However,such a power is expected to be exercised with caution. The reason AB

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Abeing, the trial court alone has the pleasure of seeing thedemeanor of the witness. In exercising such a power, the appellatecourt has to keep in mind the views of the trial court. If it findsthat the trial court is wrong, its decision should be on the reasoninggiven. A mere substitution of views, without discussing the findingsof the trial court, by the appellate court is not permissible. If twoBviews are possible, it would only be appropriate to go with theview expressed by the trial court. While adopting reasoning insupport of its findings, the appellate court is not expected to goon moral grounds alone. Though the first appellate court is thefinal court of fact and law, it has to fall in line with the scopeCand ambit of Section 96 of the Code. [Paras 21 and 23][388-D-F;393-H]

Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 :[2008] 14 SCR 621; Jagdish Singh v. Madhuri Devi,(2008) 10 SCC 497 : [2008] 6 SCR 1176 – relied on.

D5. A testamentary court is not a court of suspicion but thatof conscience. It has to consider the relevant materials insteadof adopting an ethical reasoning. A mere exclusion of eitherbrother or sister per se would not create a suspicion unless it issurrounded by other circumstances creating an inference. In aEcase where a testatrix is accompanied by the sister of thebeneficiary of the Will and the said document is attested by thebrother, there is no room for any suspicion when both of themhave not raised any issue. The Appellant duly complied with themandate of Section 63 of the Indian Succession Act along withSection 68 of the Indian Evidence Act. PW2 being the brother ofFthe Appellant and the other sister were present at the time ofexecution of Exhibit P4. They have not raised any demur. Boththe Courts found that Exhibit D1 is a forged and fabricateddocument. The alleged mortgage in favor of Respondent No.1has not been proved. The Appellate Court unnecessarily createdGa suspicion when there is none. The Respondents have not deniedthe factum of the execution of Exhibit P4. The very fact that theymade reliance upon Exhibit D1, which took note of Exhibit P4 asvalidly done, there is no need for any suspicion on the part of theHigh Court. That too, when the Trial Court did not find any. Sucha suspicion did not arise from either of the siblings of the AppellantH

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who would otherwise be entitled to a share in the Suit Property.The High Court did not give any reasoning whatsoever fordiffering with the views expressed by the Trial Court. TheAppellate Court has not considered the relevant materials andsubstituted its own views when not warranted either on facts orlaw. The judgment and decree of the Appellate Court as confirmedin R.P No.279 of 2007, are set aside. The Judgment andDecree of the Trial Court is restored. [Paras 24, 25, 27, 28 and30][394-A-E; 395-A, C-D, G]

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Joseph Antony Lazarus (Dead) by LRs v A.J. Francis(2006) 9 SCC 515 : [2006] 3 SCR 709; Mahesh Kumar(Dead) By LRs v Vinod Kumar & Ors. (2012) 4 SCC387 : 2012 (3 ) JT 338 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1376-1377 of 2010.

From the Judgment and Order dated 20.09.2006 of the High Courtof Karnataka at Bangalore in R.F.A. No.692 of 2004 and order dated23.11.2007 in R.P. No.279 of 2007.

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Anand Sanjay M. Nuli, Suraj Kaushik, Agam Sharma, DharmSingh, M/s Nuli & Nuli, Advs. for the Appellant.

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Ms. Kiran Suri, Sr. Adv., S. J. Amith, Krishna Kumar, Dr. (Mrs.)Vipin Gupta, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

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BACKGROUND FACTS:

1. The Suit Property originally belonged to one Ms. JessieJayalakshmi (since deceased). The deceased Ms. Jessie Jayalakshmi, aspinster, was the maternal aunt of the Appellant/Plaintiff. Mr. Vijay Kumarand Ms. Kantha Lakshmi were his brother and sister, respectively. It isthe case of the Appellant that the deceased, Ms. Jessie Jayalakshmi H

Aadopted him as her son and that he took care of her when she sufferedan attack of paralysis.

2. A registered Will under Exhibit P4 was executed by Ms. JessieJayalakshmi on 04.09.1985 in favour of the Appellant. The said Will wasattested by Mr. Vijay Kumar, brother of the Appellant, who has alsoBbeen examined as PW2.

Ms. Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Ms. Kantha Lakshmi.

3. The relationship between Ms. Kantha Lakshmi and her husband,who has been arrayed as Respondent No. 1 got strained. She consequentlyCfiled a petition for divorce in MC No. 879 of 1987 before the FamilyCourt of Principal Judge, Bangalore and obtained a divorce decree on26.03.1988. It is the further case of the Appellant that Respondent No.1 was permitted to reside in the Suit Property. Respondent No. 2 is theson of Respondent No. 1. As the Respondent No. 1 refused to vacateDthe Suit Property, which is a residential house, for which the Appellant isstated to have paid all the statutory dues, a suit for declaration and forpossession was filed in O.S. No. 51 of 1992 which was decreed on11.12.2003.

4. The Defendants/Respondents while acknowledging the factumEof execution of Exhibit P4, introduced Exhibit D1, an unregistered Will,allegedly executed by Ms. Jessie Jayalakshmi in favour of the RespondentNo.2 (minor son of Respondent No.1). It is their case that Exhibit P4has been replaced by Exhibit D1. Exhibit D1 also speaks of a mortgagein favour of Respondent No.1 on payment of Rs. 31,000/- in favor ofFdeceased, Ms. Jessie Jayalakshmi. Thus, the Respondent did not seriouslydispute the execution of Exhibit P4 but set up a plea for the dismissal ofthe suit by taking umbrage under Exhibit D1 and on the basis of thealleged mortgage. There was also a denial of the averment of theAppellant regarding permissive occupation. While accepting the decreefor divorce it is contended by the 1[st] Respondent that it has not beenGgiven effect to.

5. The Trial Court framed the following issues for consideration:

“1.Does the Plaintiff prove to have acquired title to thesuit property by virtue of the Will 04.09.1985 executedby late Jessie Jayalakshmi?

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2. Does he prove that the Will dated 16.08.1996Aexecuted by Jessie Jayalakshmi is fabricated andforged document?

3. Does he prove that the Defendant is in occupationof the schedule property as licensee free of charges?

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4. Whether the Plaintiff has the cause of action for thesuit?

5. Is the suit barred by limitation?

6. What order or decree the parties are entitled to?”

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6. The Appellant examined himself as PW1 with his brother asPW2. The second attesting witness was examined as PW3 being anindependent one. On behalf of the Respondents, Respondent No.1examined himself as DW1, with the attesting witness, Manish as DW2.

7. The Trial Court decreed the suit upon satisfying itself that theparameters as required under Section 63 of the Indian Succession Actread with Section 68 of the Indian Evidence Act have been duly compliedwith in proving Exhibit P4. On Exhibit D1, exhaustive reasoning wasrendered for doubting its genuineness. The reasoning would include thethumb impression, signature, the nature of recitals, the manner in whichit was written, and the evidence given by DW2, who did not know anythingabout the deceased, Ms. Jessie Jayalakshmi, other than being a personknown to DW1. It found that the thumb impression in Exhibit D1 wassmudged and the scribe of Exhibit D1 has not been examined. Further,the stamp on Exhibit D1 bearing date of 15.08.1986 and bearing the sealof the treasury happened to be issued on Independence Day. We mayalso note that Exhibit D1 was stated to have been executed on 16.08.1986while Ms. Jessie Jayalakshmi died on 22.08.1986 i.e., within a week’stime.

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8. Aggrieved over the same, the Respondents filed an appealbefore the High Court invoking Section 96 of the Civil Procedure Codein RFA No. 692 of 2004 which was decided on 20.09.2006.

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9. The High Court reaffirmed the findings of the Trial Court withrespect to the genuineness of Exhibit D1. However, in the absence ofany specific pleading coupled with an admission of the execution ofExhibit P4, the High Court did an exercise by entertaining a suspicionand accordingly found that it has not been dispelled by the Appellant.

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AFindings have been rendered to the effect that there is no logic in theexclusion of the sister of the Appellant and PW2. Incidentally, it hasbeen held that evidence of PW3 would not be sufficient enough to removethe suspicion surrounding Exhibit P4 and if the deceased Ms. JessieJayalakshmi was brought to the office of the Sub-Registrar by Ms. KanthaLakshmi, there was no basis to leave her out of the Will. On that basis,Bthe suit was dismissed by allowing the appeal.

10. An application for review was filed by the Appellant alongwith an application for condonation of delay. This application was filedin R.P. 279 of 2007 which was dismissed by the High Court declining tocondone the delay on 23.11.2007. The Appellant has filed the presentCappeals against the aforesaid judgement and decree rendered by theHigh Court.

11. During the pendency of the pleadings before this Court,Respondent No.1 died. His divorced wife Ms. Kantha Lakshmi alsodied. Consequently, along with Respondent No.2, a daughter born out ofDthe wedlock (Respondent No. 1(b)) was brought on record as additionallegal heir of the deceased Respondent No.1.

ARGUMENTS OF THE APPELLANT:

12. It is argued by the counsel for the Appellant that Exhibit P4 isEa registered document. PW2 and 3 have deposed in tune with the saiddocument. The fact that Ms. Kantha Lakshmi accompanied the deceased,Ms. Jessie Jayalakshmi would show that Exhibit P4 has been executedproperly. She did not raise any objection. There was no pleading disputingExhibit P4. The High court has created its own suspicion. The findingsof the Trial Court resulting in decreeing the suit have not been foundFfault with. Having found Exhibit D1 is a forged and fabricated document,the High Court ought to have affirmed the decree and judgment of theTrial Court.

ARGUMENTS OF THE RESPONDENTS:

ARGUMENTS OF THE RESPONDENTS:

13. The question as to whether there exists a suspiciousGcircumstance is one of fact. Hence, it cannot be adjudicated by invokingArticle 136 of the Constitution of India. There is no explanation for theexclusion of the brother and sister of the Appellant. Exhibit D1 has beenwrongly rejected by the Courts below. What is important is the validityof Exhibit P4. The First Appellate Court has got adequate jurisdiction toHsatisfy itself on the suspicion surrounding Exhibit P4. Ms. Kiran Suri, the learned Senior Counsel, to buttress her submission placed reliance uponthe following judgements:

A.Joseph Antony Lazarus (Dead) by LRs v A.J. Francis,(2006) 9 SCC 515

B.Mahesh Kumar (Dead) By LRs v Vinod Kumar & Ors.,(2012) 4 SCC 387

CONSIDERATION ON LAW:

Indian Evidence Act, 1872:

14. Section 3 of the Indian Evidence Act defines “a fact”. Conductof a party would be construed as a fact under Section 8. Such a conductmay either be a previous or subsequent one. It is the product of a motiveor a preparation.

When evidence is given on the conduct of a party and if it isproved to the satisfaction of the court particularly when it involves anadmission, adequate weightage is required to be given. Such a conductwould include a silence emanating from a party who is expected to speakand express. When a party makes a claim based upon revocation of theearlier Will, as indicated in the subsequent one, the said acknowledgementof the former would form part of a conduct leading to a relevant factvis-à-vis a fact in issue.

15. Section 17 defines “an admission” which would include astatement both oral and documentary. When such an admission is clearand unequivocal, there is no need to prove it while taking judicial notice.Under Section 58, a fact admitted need not be proved unless the courtwarrants it. Thus, in a case where a party admits the execution of thedocument in the nature of a Will, which is otherwise proved in accordancewith Section 63 and Section 68 of the Indian Succession Act and IndianEvidence Act respectively, it becomes a relevant fact duly proved, in theabsence of any discretion by the court. The exercise of discretion is ajudicial one and therefore, there must be a basis in asking a party toprove it otherwise.

16. Section 68 speaks of a requirement of proving the executionof a document required by law to be attested. This provision beingmandatory as the word employed is “shall”, meaning thereby it shall notbe used as evidence unless one attesting witness at least has been calledfor to prove its execution. When it comes to proving a Will, Section 68 of A

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Athe Act is mandatorily to be followed. This provision has to be seen andread along with Section 63 of Indian Succession Act which not onlymandates a compulsory attestation but reiterates compliance of section68 of the Indian Evidence Act.

17. Section 114 facilitates a court to presume existence of certainBfacts. As the word employed being “may”, it is a rebuttable presumption.Under Section 114(e) there is a presumption of judicial and official actshaving been regularly and duly performed.

18. The principle governing estoppel is defined under Section 115of the Act. When a person by his declaration, act, or omission, intentionallyCcaused or permitted another person to believe a thing to be true and toact upon such belief, he shall not be allowed to deny the truth of thatthing.

REGISTRATION ACT, 1908:

D19. Section 17 of the Registration Act deals with documents ofwhich registration is compulsory. A Will being a testamentary documentdoes not find a place under Section 17 which factum is reiterated underSection 18, making such a document to be registered at the option of aparty. A Will which is originally not registered may be presented forregistration or deposited at any time under E

Section 27. Therefore, the registration of a Will is only an additionalor attending circumstance in proving it with the rebuttable presumptionavailable under Section 114(e) of the Indian Evidence Act.

CODE OF CIVIL PROCEDURE:

FOrder VI:

20. Order VI of the Code while defining the word “pleading”makes it applicable on even terms to both a plaint and written statement.Every pleading under Order VI Rule 2 shall contain a statement ofmaterial facts on which a party relies either for his claim or defense.GSuch a pleading should contain the necessary foundation for raising anappropriate issue. Under Order VIII Rule 2 a defendant shall makespecific pleadings while under Rule 3 a denial should be specific. Rule 4prohibits an evasive denial and Rule 5 speaks of consequences of notdenying specifically an averment in a plaint leading to presumption of anadmission.H

[M. M. SUNDRESH, J. ]

A relief can only be on the basis of the pleadings alone. Evidenceis also to be based on such pleadings. The only exception would bewhen the parties know each other’s case very well and such a pleadingis implicit in an issue. Additionally, a court can take judicial note of a factwhen it is so apparent on the face of the record. A useful reference canbe made to the following passage in Bachhaj Nahar v. Nilima Mandal,(2008) 17 SCC 491:

“15. The relevant principle relating to circumstances in which thedeficiency in, or absence of, pleadings could be ignored, was statedby a Constitution Bench of this Court in Bhagwati Prasad v.Chandramaul [AIR 1966 SC 735]: (AIR p. 738, para 10)

“10. … If a plea is not specifically made and yet it is cov-ered by an issue by implication, and the parties knew thatthe said plea was involved in the trial, then the mere factthat the plea was not expressly taken in the pleadings wouldnot necessarily disentitle a party from relying upon it if it issatisfactorily proved by evidence. The general rule no doubt isthat the relief should be founded on pleadings made by theparties. But where the substantial matters relating to the titleof both parties to the suit are touched, though indirectly oreven obscurely, in the issues, and evidence has been led aboutthem, then the argument that a particular matter was notexpressly taken in the pleadings would be purely formal andtechnical and cannot succeed in every case. What the Courthas to consider in dealing with such an objection is: did theparties know that the matter in question was involved inthe trial, and did they lead evidence about it? If it appearsthat the parties did not know that the matter was in issue at thetrial and one of them has had no opportunity to lead evidencein respect of it, that un- doubtedly would be a different matter.To allow one party to rely upon a matter in respect of whichthe other party did not lead evidence and has had noopportunity to lead evidence, would introduceconsiderations of prejudice, and in doing justice to oneparty, the Court cannot do injustice to another.”

(emphasis supplied)xxxxxx

xxxxxxxxx“23 [Ed.: Para 23 corrected vide Official Corrigendum No.F.3/Ed.B.J./89/2009 dated 17-7-2009]. It is fundamental that A

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Ain a civil suit, relief to be granted can be only with reference to theprayers made in the pleadings. That apart, in civil suits, grant ofrelief is circumscribed by various factors like court fee, limitation,parties to the suits, as also grounds barring relief, like res judicata,estoppel, acquiescence, non-joinder of causes of action or parties,etc., which require pleading and proof. Therefore, it would beBhazardous to hold that in a civil suit whatever be the relief that isprayed, the court can on examination of facts grant any relief asit thinks fit. In a suit for recovery of rupees one lakh, the courtcan- not grant a decree for rupees ten lakhs. In a suit for recoverypos- session of property ‘A’, court cannot grant possession ofCproperty ‘B’. In a suit praying for permanent injunction, courtcannot grant a relief of declaration or possession. The jurisdictionto grant relief in a civil suit necessarily depends on the pleadings,prayer, court fee paid, evidence let in, etc.”

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Section 96:D

21. The first appellate court while exercising power under Section96 can re-do the exercise of the trial court. However, such a power isexpected to be exercised with caution. The reason being, the trial courtalone has the pleasure of seeing the demeanor of the witness. Therefore,it has got its own advantage in assessing the statement of the witnessesEwhich may not be available to the appellate court. In exercising such apower, the appellate court has to keep in mind the views of the trialcourt. If it finds that the trial court is wrong, its decision should be on thereasoning given. A mere substitution of views, without discussing thefindings of the trial court, by the appellate court is not permissible. If twoviews are possible, it would only be appropriate to go with the viewFexpressed by the trial court. While adopting reasoning in support of itsfindings, the appellate court is not expected to go on moral grounds alone.

22. The aforesaid views expressed by us are nothing but areiteration of the settled principle of law as could be seen through thefollowing paragraphs of the decision rendered by this Court in the caseGof Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497:

“27. It is no doubt true that the High Court was exercising poweras first appellate court and hence it was open to the Court toenter into not only questions of law but questions of fact as well.It is settled law that an appeal is a continuation of suit. An appealHthus is a re-hearing of the main matter and the appellate court can re- appraise, re- appreciate and review the entire evidence – oralas well as documentary and can come to its own conclusion.

28. At the same time, however, the appellate court is expected,nay bound, to bear in mind a finding recorded by the trial court onoral evidence. It should not forget that the trial court had anadvantage and opportunity of seeing the demeanor of witnessesand, hence, the trial court’s conclusions should not normally bedisturbed. No doubt, the appellate court possesses the same powersas that of the original court, but they have to be exercised withproper care, caution and circumspection. When a finding of facthas been recorded by the trial court mainly on appreciation of oralevidence, it should not be lightly disturbed unless the approach ofthe trial court in appraisal of evidence is erroneous, contrary towell- established principles of law or unreasonable.

29. Before more than a century, in Coghlan v. Cumberland[(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principlethus;

“Even where the appeal turns on a question of fact, the Courtof Appeal has to bear in mind that its duty is to rehear the case,and the Court must reconsider the materials before the Judgewith such other materials as it may have decided to admit. TheCourt must then make up its own mind, not disregarding thejudgment appealed from, but carefully weighing and consideringit; and not shrinking from overruling it if on full considerationthe Court comes to the conclusion that the judgment is wrong.When, as often happens, much turns on the relative credibilityof witnesses who have been examined and cross-examinedbefore the Judge, the Court is sensible of the great advantagehe has had in seeing and hearing them. It is often very difficultto estimate correctly the relative credibility of witnesses fromwritten depositions and when the question arises which witnessis to be believed rather than another; and that question turnson manner and demeanour, the Court of Appeal always is, andmust be, guided by the impression made on the Judge whosaw the witnesses. But there may obviously be othercircumstances, quite apart from manner and demeanour, whichmay shew whether a statement is credible or not; and thesecircumstances may warrant the Court in differing from the AB

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Judge, even on a question of fact turning on the credibility ofwitnesses whom the Court has not seen.”

(See also observations of Lord Thankerton in Watt v. Thomas,[1947 AC 484])

30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32]the Judicial Committee of the Privy Council, after referring torelevant decisions on the point, stated (Quoting from Watt vThomas, [(1947) 1 All ER 582, pp.583 H-584 A]):

“…but if the evidence as a whole can reasonably be regardedas justifying the conclusion arrived at the trial, and especially ifthat conclusion has been arrived at on conflicting testimony bya tribunal which saw and heard the witnesses, the appellatecourt will bear in mind that it has not enjoyed this opportunityand that the view of the trial Judge as to where credibility liesis entitled to great weight. This is not to say that the Judge offirst instance can be treated as infallible in determining whichside is telling the truth or is refraining from exaggeration. Likeother tribunals, he may go wrong on a question of fact, but it isa cogent circumstance that a Judge of first instance, whenestimating the value of verbal testimony, has the advantage(which is denied to courts of appeal) of having the witnessesbefore him and observing the manner in which their evidenceis given.”

31. This Court also, before more than half a century in SarjuPershad v. Jwaleshwari, Pratap Narain Singh [AIR 1951 SC120] stated: (AIR p. 121, para 7)

“7. The question for our consideration is undoubtedly one offact, the decision of which depends upon the appreciation oforal evidence adduced in the case. In such cases, the appellatecourt has got to bear in mind that it has not the advantagewhich the trial Judge had in having the witnesses before himand of observing the manner in which they deposed in court.This certainly does not mean that when an appeal lies on facts,the appellate court is not competent to reverse a finding offact arrived at by the trial Judge. The rule is and it is nothingmore than a rule of practice that when there is conflict of oralevidence of the parties on any matter in issue and the decisionhinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particularwitness which has escaped the trial Judge’s notice or there isa sufficient balance of improbability to displace his opinion asto where the credibility lies, the appellate court should notinterfere with the finding of the trial Judge on a question offact.”

32. Referring to several cases on the point, the Court concluded:(Sarju Pershad case, AIR p. 123, para 15):

“15. …The duty of the appellate court in such cases is tosee whether the evidence taken as a whole can reasonablyjustify the conclusion which the trial court arrived at orwhether there is an element of improbability arising fromproved circumstances which, in the opinion of the court,outweighs such finding.”

(emphasis supplied)

33. After about a decade, in Radha Prasad v. Gajadhar Singh[AIR 1960 SC 115] this Court reiterated: (AIR p. 123, para 15)

“14. The position in law, in our opinion, is that when an appeallies on facts it is the right and the duty of the appeal court toconsider what its decision on the question of facts should be;but in coming to its own decision it should bear in mind that it islooking at the printed record and has not the opportunity ofseeing the witnesses and that it should not lightly reject thetrial Judge’s conclusion that the evidence of a particular witnessshould be believed or should not be believed particularly whensuch conclusion is based on the observation of the demeanorof the witness in court. But this does not mean that merelybecause an appeal court has not heard or seen the witness itwill in no case reverse the findings of a trial Judge even on thequestion of credibility, if such question depends on a fairconsideration of matters on record. When it appears to theappeal court that important considerations bearing on thequestion of credibility have not been taken into account orproperly weighed by the trial Judge and such considerationsincluding the question of probability of the story given by thewitnesses clearly indicate that the view taken by the trial Judgeis wrong, the appeal court should have no hesitation in reversingthe findings of the trial Judge on such questions. Where the A

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question is not of credibility based entirely on the demeanor ofwitnesses observed in court but a question of inference of onefact from proved primary facts the court of appeal is in asgood a position as the trial Judge and is free to reverse thefindings if it thinks that the inference made by the trial Judge isnot justified.”

34. In T.D. Gopalan v. Commissioner of Hindu Religious &Charitable Endowments [(1972) 2 SCC 329], this Court said:(SCC p. 333, para 9):

“9. The High Court next proceeded to reproduce a summaryof the statement of each of the witnesses produced by thedefendants. No attempt whatsoever was made to discuss thereasons which the learned District Judge had given for notaccepting their evidence except for a general observation hereand there that nothing had been suggested in the cross-examination of a particular witness as to why he should havemade a false statement. We apprehend that the uniform practicein the matter of appreciation of evidence has been that if thetrial court has given cogent and detailed reasons for notaccepting the testimony of a witness the appellate court in allfairness to it ought to deal with those reasons before proceedingto form a contrary opinion about accepting the testimony whichhas been rejected by the trial court. We are, therefore, not in aposition to know on what grounds the High Court disagreedwith the reasons which prevailed with the learned District Judgefor not relying on the evidence of the witnesses produced bythe defendants.”

35. Yet in another decision in Madhusudan Das v. Narayanibai[(1983) 1 SCC 35], this Court said: (SCC pp. 39-40, para 8):

“8. …At this stage, it would be right to refer to the generalprinciple that, in an appeal against a trial court decree, whenthe appellate court considers an issue turning on oral evidenceit must bear in mind that it does not enjoy the advantage whichthe trial court had in having the witnesses before it and ofobserving the manner in which they gave their testimony. Whenthere is a conflict of oral evidence on any matter in issue andits resolution turns upon the credibility of the witnesses, thegeneral rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearlyappears that some special feature about the evidence of aparticular witness has escaped the notice of the trial court orthere is a sufficient balance of improbability to displace itsopinion as to where the credibility lies. …The principle is oneof practice and governs the weight to be given to a finding offact by the trial court. There is, of course, no doubt that asa matter of law if the appraisal of the evidence by the trialcourt suffers from a material irregularity or is based oninadmissible evidence or on a misreading of the evidenceor on conjectures and surmises the appellate court isentitled to interfere with the finding of fact.”

(emphasis supplied)

36. Three requisites should normally be present before an appellatecourt reverses a finding of the trial court:

(i) it applies its mind to reasons given by the trial court;

(ii) it has no advantage of seeing and hearing thewitnesses; and

(iii) it records cogent and convincing reasons fordisagreeing with the trial court.

37. If the above principles are kept in mind, in our judgment, thedecision of the High Court falls short of the grounds which wouldallow the first appellate court to reverse a finding of fact recordedby the trial court. As already adverted earlier, the High Court has‘virtually’ reached a conclusion without recording reasons insupport of such conclusion. When the court of original jurisdictionhas considered oral evidence and recorded findings after seeingthe demeanour of witnesses and having applied its mind, theappellate court is enjoined to keep that fact in mind. It has to dealwith the reasons recorded and conclusions arrived at by the trialcourt. Thereafter, it is certainly open to the appellate court tocome to its own conclusion if it finds that the reasons whichweighed with the trial court or conclusions arrived at were not inconsonance with law.”

23. Thus, we have no hesitation in holding that though the firstappellate court is the final court of fact and law, it has to fall in line withthe scope and ambit of Section 96 of the Code.

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ATESTAMENTARY COURT:

24. A testamentary court is not a court of suspicion but that ofconscience. It has to consider the relevant materials instead of adoptingan ethical reasoning. A mere exclusion of either brother or sister per sewould not create a suspicion unless it is surrounded by other circumstancesBcreating an inference. In a case where a testatrix is accompanied by thesister of the beneficiary of the Will and the said document is attested bythe brother, there is no room for any suspicion when both of them havenot raised any issue.

ON FACTS

ON FACTS

C25. The Appellant has duly complied with the mandate of Section63 of the Indian Succession Act along with Section 68 of the IndianEvidence Act. PW2 being the brother of the Appellant and the othersister, Ms. Kantha Lakshmi were present at the time of execution ofExhibit P4. They have not raised any demur. Both the Courts found thatExhibit D1 is a forged and fabricated document. The alleged mortgageDin favor of Respondent No.1 has not been proved. The Appellate Court,in our considered view, has unnecessarily created a suspicion when thereis none. The Respondents have not denied the factum of the executionof Exhibit P4. The very fact that they made reliance upon Exhibit D1,which took note of Exhibit P4 as validly done, there is no need for anyEsuspicion on the part of the High Court. That too, when the Trial Courtdid not find any. Such a suspicion, as stated earlier, did not arise fromeither of the siblings of the Appellant who would otherwise be entitled toa share in the Suit Property. Their exclusion will not enure to the benefitof the Defendants who are bound by the recitals under Exhibit D1 andaverments made in their written statement.F

26. The High Court has also committed an error in misconstruingthe presence of the sister of the Appellant, Ms. Kantha Lakshmi. Herpresence in fact adds strength to Exhibit P4 having been executedproperly. It is the specific case of the Appellant, and perhaps PW2 andMs. Kantha Lakshmi that the deceased, Ms. Jessie Jayalakshmi wantedGthe property to be given in his favor. Their participation coupled with thesubsequent conduct would be sufficient enough to uphold Exhibit P4.When there are no suspicious circumstances surrounding the executionof Exhibit P4, there is no need to remove.

27. Both the Courts have given adequate reasoning for not believingHExhibit D1. In the absence of pleadings to the contrary, followed by issues framed, it is not open to the Appellate Court to embark upon anexercise which is not required and also not permitted under the law. Wehave already held that the High Court did not give any reasoningwhatsoever for differing with the views expressed by the Trial Court.

28. The decisions relied upon by the learned Senior Counselappearing for the Respondents do not have any application to the casewe are dealing with. It may be correct to state that the existence ofsuspicious circumstances is one of fact. However, the approach of theCourt being contrary to law, we have no hesitation in holding that thejudgment and decree of the Appellate Court requires to be interferedwith. As stated, due execution of Exhibit P4 is accepted as against ExhibitD1. Exhibit P4 also cannot be questioned by the Respondent No. 1 whois none other than the erstwhile brother-in-law of the Appellant.Respondent No. 1 & 2 merely rely upon Exhibit D1 which is rightlyfound to be not genuine by both the Courts. We feel that the AppellateCourt has not considered the relevant materials and substituted its ownviews when not warranted either on facts or law.

29. The High Court after giving adequate reasoning for disbelievingExhibit D1 that it is forged and fabricated should have kept in mind theconduct and attitude of the Respondent No.1. The factors such as thefabrication and severance of relationship between himself and his wifein pursuance of the decree for divorce, coupled with the status whilesquatting over the Suit Property being the relevant materials, ought tohave weighed in its mind instead of questioning Exhibit P4. Had thatbeen done, perhaps it would have come to conclusion that such anexercise is not warranted at the hands of the Respondents, who not onlyaccepted Exhibit P4 but it did not even question it; except by contendingthat it is replaced by Exhibit D1.

30. For the reasons aforesaid, we have no hesitation in holdingthat the judgment and decree of the Appellate Court rendered in RFANo. 692 of 2004 as confirmed in R.P. No.279 of 2007 is required to beset aside. Accordingly, they are set aside and consequently the appealsstand allowed by restoring the Judgment and Decree of the Trial Courtin O.S. No. 51 of 1992. No costs.

Divya Pandey

Appeals allowed.

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