Case: SHIVAKUMAR Vs. SHARANABASAPPA

under Rule 23 or Rule 23A, the whole case goes back for decision to the Trial Court except on the point on which the Appellate Court has returned concluded finding, if any. While making a remand under Rule 23 or Rule 23A, the judgment and decree of the Trial Court is required to be set aside but it is not necessary to set aside the impugned judgment and decree when taking recourse to Rule 25 of Order XLI.) 25.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court had proceeded. 25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. 25.4.1. The decision cited by the learned Counsel for the appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. Such part of the decree of the Trial Court was not challenged by the defendants but as against the part of the decision of the Trial Court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the appellant but proceeded to dismiss the entire suit with the finding that the plaintiff-appellant had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the appellant was not able to prove his title to the suit land due to non- examination of his vendor, the proper course for the High Court was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial Court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where re- trial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill- up the lacuna in its case. 25.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court. 25.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and is, rejected. CONCLUSION

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:–1. Ordinarily, 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. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera 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 give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter6. A circumstance is suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. As put by this Court, the suspicious features must be real, germane and valid and not merely the fantasy of the doubting mind7. As to whether any particular feature or a set of features qualify as suspicious would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the WillSUSPICIOUS CIRCUMSTANCES/FEATURES CONCERNING THE WILL IN QUESTION12. Having considered the present matter in its totality while keeping the principles aforesaid in view, we have not an iota of doubt that the High Court has examined the matter in its correct perspective and there had been substantial and material reasons for which, the decision of the Trial Court could not have been upheld; and the High Court has rightly reversed the same13. In summation of the lengthy discussion of the Trial Court, it could be noticed that some of the major factors which weighed with the Trial Court in rejecting the objections of the contesting defendants against the Will in question had been: (i) that the testator Sangappa was not having warmth of relations with defendant No. 1 and his family and was not willing to give anything to them; (ii) that even in the earlier Will of the year 1974, Sangappa had not bequeathed any property to the contesting defendants; (iii) that the plaintiffs, the grand–nephews of testators wife, were residing with the testator; (iv) that the father of the plaintiffs was associated with the testator in his business and other dealings; (v) that the attesting witnesses were only the customers of the testator and were naturally chosen as independent persons to stand as witnesses to the Will; (vi) that the Will in question was in possession of PW-8 and was opened by him in the presence of Swamiji; and (vii) that PW-8 had neither any animosity with the defendants nor was gaining anything from the Will14. The High Court, on the other hand, felt dissatisfied with the document itself and found no explanation on record about numerous unnatural circumstances dilated upon and discussed by it in some of the passages extracted hereinbefore. Having examined the material placed on record, in our view, the observations and findings of the High Court remain unexceptionable15.3 Therefore, in the present case, three features of the document Ex. P.4, carrying unusual characteristics of their own, manifest themselves on the face of the record and nothing but a bare look at the document is sufficient to notice them. The aforesaid three unnatural and unusual features of the document in question, where different sheets of paper have been used; where placement of the signatures of the testator at least at two places is beyond normal distance from the last typed matter; and where in making of three signatures, at least two different pens were used, make it clear that a deeper probe is called for to find as to whether this document could at all be accepted as the last Will of the testator15.4. When the exploration is pushed slightly further, another major feature comes to the fore, which has been noticed by the High Court but which escaped the attention of the Trial Court altogether. The document in question is said to be a Will running in 5 pages which is typed (in kannada script) on 3 sheets of papers with the first and second sheets carrying the typewritten contents on both sides; page number 2 being typed on the backside of page number 1 and page number 4 being typed on the backside of page number 3. The significant feature is that page number 2 and page number 4 of this document Ex. P.4 do not carry any signature at all!15.4.1. It is apparent on the face of the record that even when the front facing pages i.e., page numbers 1, 3 and 5 carry the signatures of the testator, the backside pages i.e., page number 2 and page number 4 are not signed at all and have gone unsigned. When this material aspect is added to the above-referred three unusual features, the probative value of this document Ex. P.4 is shaken to the core and it becomes a serious question as to whether this document could be considered to be a Will that was got typed and signed by the testator in the presence of the alleged attesting witnesses15.4.2. In relation to this aspect of want of signatures of the testator on page number 2 and page number 4, we may also observe that as per the requirement of clause (b) of Section 63 of the Succession Act, the signature or mark of the testator is to be so placed that it shall appear that by such signature or mark, the intention was to give effect to the writing as a Will. Of course, when no specific form of making a Will is provided, in a given case, depending on the relevant facts and circumstances, a document drawn on several sheets but carrying signature only at the end may also be accepted as a genuine Will where the document was authenticated by only one signature. However, the scenario like the present one, where the executant had purportedly signed 3 out 5 typewritten pages while omitting to sign the other 2, definitely stands at contradistinction to the dealing of any normal person in normal way. When the signatures of the testator are indeed available on page numbers 1, 3 and 5, it is difficult to find any plausible explanation for his omission to sign at page number 2 and page number 4 of the same document. The only explanation could be that the testator chose to sign the front face of each paper and did not consider it necessary to sign on the backside of the paper. However, accepting such a frail explanation, and that too in the face of other unusual features (as noticed hereinbefore), would tantamount to thrusting the probative value into the document while ignoring everything that is incongruous to, and incompatible with, the normal course of happenings15.4.3. The indisputable fact that page number 2 and page number 4 of the document in question (EX. P.4) do not carry the signatures of the testator whereas other pages do carry his signatures, in our view, places the document in conflict with, or at least non-compliant with, the requirement of clause (b) of Section 63 of the Succession Act. The document in question could be rejected outright for this reason alone. However, having regard to the circumstances of the case, it would be appropriate to deal with other factual aspects concerning the document in question before reaching to the final conclusion15.5. The discussion thus far makes it clear that at least four unusual features of the document in question are evident on the face of the record. To recapitulate, the disturbing unusual features of the document in question are that: (i) it is typewritten on 3 different sheets of paper; (ii) the placement of signatures of the testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the testator, with there being no signature on page number 2 and page number 4. It does not require any great deal of elaboration that in the ordinary, normal and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. In fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. Although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document16. While proceeding further, we may usefully reiterate the principles relating to the examination of a document propounded as Will that the document is not approached with doubts but is examined cautiously and with circumspection. For what has been noticed hereinabove, the document in question carries several such features of unusualness which travel into the realm of abnormalities. The matter does not rest with such abnormalities only. These abnormal features get confounded with other unusual features available in the contents of this document. Indisputably, several blank spaces are found in relation to the particulars of the properties and even some of the properties are not correctly described. Yet further, the dates mentioned in the document with reference to Hindi Calendar and English Calendar do not match. Yet another curious feature is the recital in the document of a past event (about vacating of the shop by the tenant in the year 1990) in the manner that such event shall happen in future. Therefore, the abnormalities relating to paper, pen and signature get magnified with blank spaces in the document as also with incorrect and inexplicable recitals17. The problems relating to the probative value of the document Ex. P.4 do not end with the aforementioned abnormal features and curious factors. A close examination of this document takes us from abnormalities to mysteries too. In the opening passage of this document, the recital is to the effect that the testator was making the Will because so many accidents do happen. The fact remains that the testator and his wife both died in the car accident on 20.05.1994 but, it would require travelling into an entirely mystical region to accept that while making the Will on 20.05.1991, the testator had the premonition that he would perish in a vehicular accident18. As noticed, even when a fishing enquiry with digging of the faults and lacuna is not to be resorted to while examining a Will but, and at the same time, the real and valid suspicions which arise because of anything standing beyond normal happening or conduct cannot be ignored either. Ignoring or brushing aside all the features noticed in relation to the document in question would require taking up an individual feature and ignoring it as being trivial or minor and then, proceeding with the belief that it had only been a matter of chance that all the abnormalities somehow chose to conglomerate into this one document. Such an approach would, obviously, be detached from realities and cannot be adopted. It needs hardly any emphasis that examination of a document propounded as Will has to be on the norms of reality as also normalcy; and the overall effect of all the features and circumstances is required to be examined19. When all the aforesaid abnormal, curious and rather mysterious circumstances are put together, the inescapable conclusion is that the document in question cannot be accepted as the last Will of the testator. The unexplained, unusual and abnormal features pertaining to the document only lead to the logical deduction that the document in question was prepared after the demise of the testator with use of blank signed papers that came in possession of the propounders and their associates. The High Court has stated such deduction after thorough examination of the material on record and, in our view, rightly so. It is noticed that all the features and factors indicated hereinabove are very much available on the face of the record. However, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. The Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approvedThe submissions so made on behalf of the appellants cannot be accepted for the reason that mere proof of the document in accordance with the requirements of Section 68 of the Evidence Act is not final and conclusive for acceptance of a document as a Will. When suspicious circumstances exist and the suspicions have not been removed, the document in question cannot be accepted as a Will21. Even the aspect suggested on behalf of the plaintiffs and their witnesses that the document in question (Ex. P.4) was drawn up as a Will and was placed in a sealed cover with the handwritten draft (Ex. P.3) has its own shortcomings and the share of abnormalities. It remains indisputable that the said draft (Ex. P.3) had remained incomplete. It may be assumed that the same was being drawn up by the testator in his own handwriting for finally making his last Will after he had revoked the earlier Will but, it had remained incomplete draft only. If the testator himself had got his Will typed and then, took care to have it executed in the presence of 4 attesting witnesses; and if he intended such executed document to operate as his Will; and also had the intention that his Will be kept in a sealed cover to be opened before Swamiji, in the ordinary course of dealings, it was least expected of him to put the said incomplete draft also in the envelope because placing of such incomplete draft could have only created confusion in regard to the actual Will, if there were any. Taking an overall view of the matter, the preponderance of probability is only to the effect that the entire story about execution of Will by the deceased Sangappa has been cooked up with use of readily available signed papers (though of different sheets of paper and with signatures with different instruments) and, in order to suggest some authenticity, the story of sealed envelope and leaving of the same with PW-8 was sought to be inserted. This feature only operates against the plaintiffs where it carries another unexplained unusualness22. The Trial Court had largely been swayed by the fact that the deceased Sangappa was not inclined to give any property to the defendant No. 1 and his family as had been the case of the earlier Will executed by him in the year 1974. Admittedly, the said Will of the year 1974 was cancelled by Shri Sangappa on 26.09.1990. He perished in the vehicular accident on 20.05.1991. Whether he intended to bequeath any property to the defendants or not is hardly of any bearing in relation to the suspicious circumstances noticed above23. Having dilated on various major features which, individually and cumulatively, lead only to the conclusion that the document in question cannot be accepted to be the last Will of late Shri Sangappa, it does not appear necessary to discuss several other shortcomings in the case of the plaintiffs, including various other factors like that the plaintiffs never took steps to get the statement of the said Swamiji recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened24. In our view, the document in question falls flat at the very first question indicated in the case of H. Venkatachala Iyenger (supra) that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. This is apart from the fact that the document in question, propounded as a Will, is non-compliant with the requirements of clause (b) of Section 63 of the Succession Act24.1. In the ultimate analysis, we are satisfied that the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document25. Taking up the other point for determination, the submission of learned counsel for the appellants that the High Court ought to have considered remanding the case by taking recourse to the provision contained in Order XLI Rule 23A CPC, in our view, remains totally bereft of substance; this submission has only been noted to be rejected25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case25.4.1. The decision cited by the learned Counsel for the appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand25.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and is, rejected.