MURTHY & ORS.versusC. SARADAMBAL & ORS.

836            SUPREME COURT
                         [2021]REPORTS
                               14 S.C.R. 836               [2021] 14 S.C.R.


A                              MURTHY & ORS.
                                        v.
                          C. SARADAMBAL & ORS.
                         (Civil Appeal No. 4270 of 2010)
B                            DECEMBER 10, 2021
         [L. NAGESWARA RAO AND B. V. NAGARATHNA, JJ.]
             Will: Suspicious circumstances in execution of will – Bequest
      made in the name of testator’s son to the exclusion of testator’s
      daughters – Testator’s son lived for eleven years after the death of
C
      their father – Petition seeking Letters of Administration filed fifteen
      years after the death of the testator by wife of testator’s son –
      Daughters of testator defendants sought for dismissal of the petition
      on the ground that the will was fabricated – Held: It is highly
      improbable that the only son of the testator who was a practicing
D     advocate and on whom the bequest of the house was made, was
      unaware of the execution of the will by his father – It is unnatural
      that the father would not have disclosed to his only son about the
      bequest of the property and had also not taken his son’s assistance
      in the drafting as well as execution of the will – The testator had
      suffered a paralytic stroke which had affected his speech, mobility
E
      of his right arm and right leg and he was bedridden for a period of
      ten months prior to his death – Taking these circumstances into
      consideration, a doubt is created as to whether the testator was in a
      sound and disposing state of mind at the time of making of the
      testament which was fifteen days prior to his death – The said
F     suspicion in the mind of the Court has not been removed by the
      propounder of the will i.e. first plaintiff by producing any contra
      medical evidence or the evidence of the doctor who was treating
      the testator prior to his death – Testator had himself stated in the
      alleged will that he was sick and getting weak even then he is stated
      to have “written” the will himself which is not believable – s.63 of
G
      the Succession Act, 1925 categorically states that the testator has
      to sign on the will and the signature of the testator must be such
      that it would “intend” thereby to give effect to the writing of a will
      – Hence, the genuineness of the will must be proved by proving the
      intention of the testator to make the testament and for that, all steps
H     which are required to be taken for making a valid testament must be
                                       836
           MURTHY & ORS. v. C. SARADAMBAL & ORS.                          837


proved by placing concrete evidence before the Court – There is no        A
evidence as to whom the testator gave instructions to write the will
– The scribe was also not examined – In order to prove the execution
of the document such as a testament, at least one of the attesting
witnesses who had attested the same must be called to give evidence
for the purpose of proof of its execution – One attestor had died –
                                                                          B
The second attestor, PW2 had given his evidence – PW2 deposed
that the will could not be registered as the testator was unwell and
in fact, he was bedridden – His deposition was rather fatal to the
case of the beneficiary of the Will – Trial Court had also not believed
the evidence of PW2 – Respondents-plaintiffs were not successful
in proving the validity of the will in accordance with law inasmuch       C
as the suspicious circumstances surrounding the very execution of
the will were not cleared by any cogent evidence, rather, the
genuineness of will remained in doubt – The alleged Will not being a
valid document in the eye of law, no Letters of Administration can be
granted to the respondents-plaintiffs – Succession Act, 1925 – s.63.
                                                                          D
       Judgment/Order: Reasoned order – Duty of Appellate court
while affirming, modifying or reversing the judgment of lower court
– Held: The Appellate Court has jurisdiction to reverse, affirm or
modify the findings and the judgment of the Trial Court – However,
while reversing or modifying the judgment of a Trial Court, it is the
duty of the Appellate Court to reflect in its judgment, conscious         E
application of mind on the findings recorded supported by reasons,
on all issues dealt with, as well as the contentions put forth, and
pressed by the parties for decision of the Appellate Court – No
doubt, when the Appellate Court affirms the judgment of a Trial
Court, the reasoning need not to be elaborate although re-                F
appreciation of the evidence and reconsideration of the judgment
of the Trial Court are necessary concomitants – But while reversing
a judgment of a Trial Court, the Appellate Court must be more
conscious of its duty in assigning the reasons for doing so – In the
instant case, High Court has dealt with the judgment of the Trial
Judge in a short cut method, bereft of all reasoning while reversing      G
the judgment of the Trial Court both on facts as well as law.
      Judgment/Order: Duty of Appellate court, while reversing the
judgment of lower court – Held: While writing a judgment of
reversal, an Appellate Court must remain conscious of two principles
– Firstly, the findings of facts based on conflicting evidence arrived    H
838            SUPREME COURT REPORTS                      [2021] 14 S.C.R.


A     at by the Trial Court must weigh with the Appellate Court, more so
      when the findings are based on oral evidence recorded by the same
      Presiding Judge who authors the judgment – If, on an appraisal of
      the evidence, it is found that the judgment of the Trial Court suffers
      from a material irregularity or is based on inadmissible evidence or
      on conjectures and surmises, the Appellate Court is entitled to
B
      interfere with the finding of fact but by assigning cogent reasons
      for doing so – Otherwise, the findings of the Trial Court should not
      be interfered with lightly on a question of fact – Secondly, while
      reversing a finding of fact, it is necessary that the Appellate Court
      assigns its own reasons for doing so – This is especially so in case
C     there are further appeals under s.100, CPC, as the first Appellate
      Court is the final court of facts and the said findings are immune
      from challenge in a second appeal.
             Appeal: Right to file appeal – Held: Right to appeal is a
      creature of statute – The right to file an appeal by an unsuccessful
D     party assailing the judgment of the Original Court is a valuable
      right and hence a duty is cast on the Appellate Court to adjudicate
      a first appeal both on questions of fact and applicable law – Hence,
      the re-appreciation of evidence in light of the contentions raised by
      the respective parties and judicial precedent and the law applicable
      to the case have to be conscientiously dealt with.
E
            Allowing the appeal, the Court
            HELD: 1. The respondents-plaintiffs have failed to prove
      the will (Ex-P1) in accordance with law inasmuch as they have
      not removed the suspicious circumstances, surrounding the
F     execution of the will. Hence, Ex-P1, not being a valid document
      in the eye of law, no Letters of Administration can be granted to
      the respondents-plaintiffs. The Trial Judge was right in dismissing
      the suit. However, the Appellate Court being the Division Bench
      has reversed the judgment and decree passed by the Trial Court
      and has decreed the suit. The judgment of the Appellate Court
G     was written in a cryptic manner. It is observed that the judgment
      could be brief and succinct if the Appellate Court is to dismiss an
      appeal and affirm the judgment and decree of the Trial Court.
      But when the judgment and decree of the Trial court is to be
      reversed then it is incumbent upon the Appellate Court to dwell
H
           MURTHY & ORS. v. C. SARADAMBAL & ORS.                        839


into the matter in detail and to give reasons for reversing the         A
same. Assigning reasons not only makes the judgment
wholesome, but is also necessary in order to deduce and lead to
just conclusions. The High Court has dealt with the judgment of
the Trial Judge in a short cut method, bereft of all reasoning
while reversing the judgment of the Trial Court both on facts as
                                                                        B
well as law. It is trite that the Appellate Court has jurisdiction to
reverse, affirm or modify the findings and the judgment of the
Trial Court. However, while reversing or modifying the judgment
of a Trial Court, it is the duty of the Appellate Court to reflect in
its judgment, conscious application of mind on the findings
recorded supported by reasons, on all issues dealt with, as well        C
as the contentions put forth, and pressed by the parties for
decision of the Appellate Court. No doubt, when the Appellate
Court affirms the judgment of a Trial Court, the reasoning need
not to be elaborate although reappreciation of the evidence and
reconsideration of the judgment of the Trial Court are necessary
                                                                        D
concomitants. But while reversing a judgment of a Trial Court,
the Appellate Court must be more conscious of its duty in
assigning the reasons for doing so. [Paras 35, 36, 37][859-E-H;
860-A-D]
       2. The right to file an appeal by an unsuccessful party
assailing the judgment of the Original Court is a valuable right        E
and hence a duty is cast on the Appellate Court to adjudicate a
first appeal both on questions of fact and applicable law. Hence,
the reappreciation of evidence in light of the contentions raised
by the respective parties and judicial precedent and the law
applicable to the case have to be conscientiously dealt with. In        F
the instant case, the Division Bench of the High Court has simply
reversed the judgment of the Trial Judge in the absence of
reappreciation of evidence and without giving findings on
questions of fact as well as on the applicable law and by not
reasoning as to why the judgment of the Trial Judge was
erroneous. [Paras 41, 42][862-B-D]                                      G
      Santosh Hazari v. Purushottam Tiwari (deceased) by
      LRS (2001) 3 SCC 179; B.V. Nagesh v. H.V. Sreenivasa
      Murthy (2010) 13 SCC 530 : [2010] 11 SCR 784; Vinod
      Kumar v. Gangadhar (2015) 1 SCC 391 : [2014] 10
      SCR 1050 – relied on.                                             H
840            SUPREME COURT REPORTS                       [2021] 14 S.C.R.


A           H.Venkatachala Iyenger vs. B.N.Thimmajamma AIR
            1959 SC 443 : [1959] Suppl. SCR 426; Jaswant Kaur
            v. Amrit Kaur and others (1977) 1 SCC 369 : [1977] 1
            SCR 925; Bharpur Singh and others v. Shamsher Singh
            (2009) 3 SCC 687 : [2008] 17 SCR 517; Naranjan
            Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13
B
            SCC 433 : [2006] 10 Suppl. SCR 1214; Anil Kak v.
            Sharada Raje (2008) 7 SCC 695 : [2008] 6 SCR 1009;
            Leela Rajagopal and others v. Kamala Menon
            Cocharan and others, (2014) 15 SCC 570 : [2014] 7
            SCR 697 – referred to.
C                            Case Law Reference
      [1959] Suppl. SCR 426              referred to           Para 30(a)
      [1977] 1 SCR 925                   referred to           Para 30(b)
      [2008] 17 SCR 517                  referred to           Para 30(c)
D
      [2006] 10 Suppl. SCR 1214          referred to           Para 30(d)
      [2008] 6 SCR 1009                  referred to           Para 30(e)
      [2014] 7 SCR 697                   referred to           Para 30(f)
      (2001) 3 SCC 179                   relied on             Para 38
E
      [2010] 11 SCR 784                  relied on             Para 39
      [2014] 10 SCR 1050                 relied on             Para 40
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4270
      of 2010.
F
            From the Judgment and Order dated 08.12.2008 of the High Court
      of Judicature at Madras in O.S.A. No.470 of 2002.
            S. Vallinayagam, Rutwik Panda, Advs. for the Appellants.
            K. K. Mani, Ms. T. Archana, Advs. for the Respondents.
G           The Judgment of the Court was delivered by
            NAGARATHNA J.
            This appeal assails the judgment and decree dated 08 th December,
      2008 passed by the High Court of Judicature at Madras, in O.S.A. No.
H     470 of 2002 by which the judgment and decree passed in T.O.S. No. 20
            MURTHY & ORS. v. C. SARADAMBAL & ORS.                                 841
                    [B. V. NAGARATHNA J.]

of 1994, wherein the learned Trial Judge of the High Court had dismissed          A
the suit for grant of Letters of Administration, was set aside and the said
suit was decreed.
      2. For the sake of convenience, the parties shall be referred to in
terms of their status in O.P. No. 150 of 1993 which was converted to
T.O.S. No. 20 of 1994, which was filed for grant of Letters of                    B
Administration.
       3. It is the case of the plaintiffs that E. Srinivasa Pillai, father-in-
law of the 1st plaintiff, had died on 19th January, 1978 leaving behind his
last will and testament dated 04th January, 1978. The said will was said
to be executed in the presence of two attestors. The testator E. Srinivasa        C
Pillai had a son, named S. Damodaran, who died intestate on 03rd June,
1989 at Madras, leaving behind the plaintiff-wife C. Saradambal and his
two daughters viz., D. Prema, aged 20 years and D. Deepalakshmi,
aged 18 years. The testator, apart from his son, S. Damodaran, left
behind two daughters viz., Savitri Ammal, wife of P. M. Elumalai and
Padmavathi, wife of T. Rajaram.                                                   D

        4. The bequest was made in the name of testator’s son viz., S.
Damodaran to the exclusion of the testator’s daughters in respect of the
house in which the testator and his family were residing, situated at
Premises No.10, Azeez Nagar II Street, Kodambakkam, Madras-24.
The daughters of the testator had filed O.S. No. 5477 of 1990 on the file         E
of IV Assistant City Civil Judge Court, Madras seeking partition of the
said property. Therefore, it had become necessary for the plaintiffs to
file the petition seeking Letters of Administration.
       5. Plaintiff-C.Saradambal averred that she would undertake to
duly administer the estate of the deceased as per the will by paying the          F
testator’s debts and legacies and by making a full and true inventory
thereof and exhibit the same in the Court.
       6. The daughters of the testator contested the said testament by
filing a written statement. They averred that the will was fabricated and
the signature of the testator in the said document was forged and the             G
same was a got-up document by the plaintiff with the help of her husband’s
friends who were the attesting witnesses of the will. It averred that the
attestors of the will had no association with the deceased testator, E.
Srinivasa Pillai. The defendants contended that they looked after their
father when he was on his deathbed. It was further contended that
                                                                                  H
842             SUPREME COURT REPORTS                           [2021] 14 S.C.R.


A     deceased testator E. Srinivasa Pillai had a paralytic attack and was unable
      to write or move. It was urged that the will had to be proved in accordance
      with law by removing all suspicious circumstances in connection with
      the execution of the same, to the satisfaction of the conscience of the
      Court. It was contended that the defendants had been deprived of intestate
      succession on account of the fraudulent and forged will.
B
             7. The defendants averred that their father died on 19 th January,
      1978, that their mother had predeceased him and their brother had also
      died in 1989. The defendants also averred that the first plaintiff got married
      to the brother of defendants on 07th June, 1970. The second and third
      plaintiffs were the daughters born out of the said wedlock. The first
C     plaintiff willfully deserted her husband and had also filed a Matrimonial
      Petition bearing No. 136 of 1988, seeking dissolution of her marriage, by
      a decree of divorce but since defendants’ brother died on 03 rd June,
      1989, the said petition for dissolution of marriage became infructuous.
      The defendants contended that the first plaintiff never cared for their
D     brother. It was further contended that their brother, S. Damodaran had
      lived for eleven years after the death of their father and he had never
      disclosed about the execution of the will by their father.
             8. The defendants had issued a legal notice dated 22nd June, 1989
      to the plaintiff for partition and separate possession of their two-third
E     share in the scheduled property and after waiting for a period of two and
      a half months, they had filed a suit for partition and separate possession
      of the said two-third share of the property.
             9. It was further averred that the testator, E. Srinivasa Pillai was
      completely bedridden, incapable of writing and understanding anything
F     for a period of ten months prior to his death. The name of the witnesses
      and the name of the person who had drafted the will were never
      disclosed. It was further averred that the testator E. Srinivasa Pillai was
      working in Binny and Company, Madras and was associated with well-
      educated and respectable people. That the petition seeking Letters of
      Administration was filed fifteen years after the death of the testator.
G     Hence, the defendants sought for dismissal of the petition seeking Letters
      of Administration.
             10. Having regard to the objections raised by the defendants, the
      Petition was converted into Testamentary Original Suit being T.O.S.
      No. 20 of 1994.
H
           MURTHY & ORS. v. C. SARADAMBAL & ORS.                             843
                   [B. V. NAGARATHNA J.]

       11. The learned Trial Judge on the basis of the pleadings, framed     A
the following issues for consideration:
      “(1) Whether the will was executed by the testator while in a
      sound and disposing state of mind? And
      (2) To what relief are the parties entitled?”
                                                                             B
       12. The learned Trial Judge dismissed the suit by judgment and
decree dated 14th January, 2000 by answering the aforesaid issues against
the plaintiffs.
      13. Being aggrieved by the impugned judgment and decree passed
by learned Trial Judge, the plaintiffs preferred an appeal being O.S.A.      C
No. 470 of 2002 before the High Court. The Division Bench vide
impugned judgment and decree dated 8th December, 2008, allowed the
appeal and decreed the suit. Hence this appeal.
      14. We have heard Mr. S. Vallinayagam, learned counsel for the
appellants, Sri K. K. Mani, learned counsel for the respondents and          D
perused the material on record.
       15. Learned counsel for the appellants contended that the Division
Bench of the High Court was not right in reversing the judgment of the
learned Trial Judge of the said Court without assigning reasons for doing
so and in that regard drew our attention to the impugned judgment. It
                                                                             E
was submitted that the learned Trial Judge had closely perused the
evidence on record, both oral and documentary and had rightly dismissed
the suit. However, the Division Bench of the High Court in the absence
of any reasoning, had reversed the judgment of the learned Trial Judge.
       16. It was next submitted that the testament, on the basis of which
                                                                             F
the respondents sought grant of Letters of Administration was concocted.
The father of the appellants, namely, E. Srinivasa Pillai was bedridden
prior to his death as he had sustained a paralytic stroke and was not in a
position to sign or write and neither was he in a sound disposing state of
mind. The appellants contended that he could not have even thought of
making the bequest of the house in which he was residing, exclusively in     G
favour of his son, S. Damodaran. They contended that the very execution
of the will is shrouded in suspicious circumstances inasmuch as even the
signature found on the controversial document is not that of the testator.
Elaborating on the same, it was urged that the respondents had placed
reliance on Exs.P2 and P3 to demonstrate that the signature on the said
                                                                             H
844            SUPREME COURT REPORTS                          [2021] 14 S.C.R.


A     documents tallied with the signatures of the testator on the will. However,
      even on a cursory glance of the said signatures it is apparent that they
      do not tally. It was submitted that the attempts of the respondents have
      been to knock off the house property as if it has been bequeathed to the
      husband of respondent No.1 and the father of the respondent No.2 and
      3, to the exclusion of the appellants who are the daughters of the
B
      deceased testator. Elaborating the said contention, it was urged that the
      testator died within a period of fifteen (15) days after the so-called
      execution of the will i.e., 04th January, 1978 as the testator died on 19th
      January, 1978.
             17. That the appellants herein had filed the suit for partition and
C     separate possession of the house property being O.S. No.5477 of 1990
      before the IV Assistant City Civil Court, Madras and in order to defeat
      the rights of the appellants herein in the house property, respondent No.1
      had concocted the will of E. Srinivasa Pillai. The said document is a
      fabricated and forged document as it had not seen the light of the day
D     for over fifteen years after the death of the testator and the petition
      seeking grant of Letters of Administration was filed only in order to seek
      the imprimatur of the Court on the said document.
            18. It was further contended that the attestors of the so-called
      testament were not known to the deceased testator, they are in fact
E     known to the first plaintiff i.e. respondent No.1 herein.
             19. It was further urged that the very execution of the will is
      suspicious and therefore the learned Trial Judge had rightly dismissed
      the suit of the respondents herein. However, the Appellate Court simply
      reversed the judgment and decree passed by the learned Trial Judge
F     without any reasoning. Hence, it was submitted that the impugned
      judgment and decree of the Division Bench of the Appellate Court may
      be set aside and the judgment and decree of the learned Trial Judge may
      be restored.
            20. Per contra, learned counsel for the respondents-plaintiffs in
G     the suit, drew our attention to the oral and documentary evidence on
      record and contended that the execution of the will had been proved in
      accordance with Section 68 of the Indian Evidence Act, 1872 and Section
      63 of the Indian Succession Act, 1925. The Appellate Court was
      convinced about the factum of the execution of the will by the testator
      E. Srinivasa Pillai and the fact that there were no suspicious
H     circumstances surrounding the execution of the will by the testator.
             MURTHY & ORS. v. C. SARADAMBAL & ORS.                              845
                     [B. V. NAGARATHNA J.]

Therefore, the Appellate Court has rightly set aside the judgment and           A
decree of the Trial Court. Hence, the same may be confirmed.
     21. We have given our thoughtful consideration to the rival
submissions made by the parties.
       22. The question that arises for consideration is, whether, the
Appellate Court was justified in setting aside the judgment and decree          B
of the learned Trial Judge, thereby allowing the appeal filed by the
plaintiffs-respondents herein and consequently, decreeing the suit filed
by them.
        23. The relationship between the parties is not in dispute. Deceased
E. Srinivasa Pillai was the father of the husband of first plaintiff as well    C
as the father of defendants being the daughters. It is also not in dispute
that the testator died on 19th January, 1978. The controversy here is with
regard to the succession to his estate. If he had died intestate, his son
and daughters would have been entitled to succeed to his estate including
the house property, equally. But the petition was filed seeking grant of        D
Letters of Administration in favour of the plaintiffs, on the basis of the
testament of the deceased, E. Srinivasa Pillai dated 04th January, 1978.
It is also not in dispute that the said testament had not seen the light of
the day for fifteen years and only after the filing of the suit for partition
and separate possession by the appellants, i.e. the daughters of the testator
herein, the respondents herein sought Letters of Administration on the          E
basis of the will of deceased E. Srinivasa Pillai, which was said to be
executed on 04th January, 1978.
       24. Before proceeding to answer the point for determination in
this appeal, it would be useful to cull out the relevant points from the
judgment of the learned Trial Judge as well as the Division Bench of the        F
High Court.
       25. The learned Trial Judge had dismissed the suit despite the
evidence of PW1, being the first plaintiff and PW2, being one of the
attestors of the will (Ex-P1) after considering the same in detail and had
noted the following aspects:                                                    G
      (i)     The testator E. Srinivasa Pillai who is said to have executed
              the will (Ex-P1) on 04th January, 1978 had died 15 days
              later.
      (ii)    The will is an unregistered one.
                                                                                H
846         SUPREME COURT REPORTS                       [2021] 14 S.C.R.


A     (iii)   The testator’s son, S. Damodaran was a practicing
              advocate.
      (iv)    The testator was also educated.
      (v)     That the testator was not in a sound and disposing state of
              mind as he was seriously ill and weak prior to his death, as
B             he was suffering from a paralytic attack.
      (vi)    PW2 had deposed in his evidence that the testator was
              suffering from a paralytic attack and was unable to move
              his right hand and right leg prior to his death and he was
              confined to the house for about ten months prior to his death
C             and he was unable to write.
      (vii)   The son of the testator was not aware of the execution of
              the will and he did not take any step for probate of the
              same.

D     (viii) After the death of testator’s son, S. Damodaran, his wife-
             plaintiff No.1, came forward to seek Letters of
             Administration.
      (ix)    There were proceedings for divorce between PW1 and her
              husband, S. Damodaran and she had also consented for
              divorce.
E
      (x)     Though the person who wrote the will was known to the
              father-in-law of PW1, his name is not mentioned in the will
              nor does the will have any date mentioned in it.
      (xi)    The will (Ex-P1) had not seen the light of the day for nearly
F             fifteen years although the testator’s son was a practising
              advocate.
      (xii)   PW2 admitted that PW1 was outside the room at the time
              of the execution of the will whereas PW1 stated that when
              the will (Ex-P1) was executed by her father-in-law she
G             was present. So, there exists a discrepancy in the versions
              of evidences by PW1 and PW2.
      (xiii) PW2 had admitted that he had filed the affidavit on the
             request of the advocate and not on his own accord.
             Therefore, no weight could be attached to the evidence of
H            PW2.
            MURTHY & ORS. v. C. SARADAMBAL & ORS.                               847
                    [B. V. NAGARATHNA J.]

      (xiv) Daughters of the deceased had filed a partition suit being          A
            O.S. No. 5977 of 1990. It is only, thereafter, that proceedings
            were commenced by the plaintiffs for grant of Letters of
            Administration.
      (xv) Since the testator was not healthy prior to his death and
           was suffering from paralysis, he was not in a position to            B
           write (sign). Hence, it is doubtful that he had executed the
           will.
      (xvi) The attestator himself had admitted about the health
            condition of the testator by stating that he could not be taken
            to the Sub-Registrar’s office for the registration of the will      C
            on account of the paralytic attack.
      (xvii) Execution of the will is itself suspicious and the evidence
             regarding execution of the will has not dispelled the
             suspicious circumstances.
      (xviii) The bequest is also questioned inasmuch as the daughters          D
              have no share in the house property.
       26. In view of the aforesaid points, the learned Trial Judge dismissed
the suit filed by the plaintiffs-respondents herein.
       27. The Division Bench before whom the appeal was preferred,
                                                                                E
after observing that Section 68 of the Indian Evidence Act, 1872, has to
be complied with to establish proof of the will, noted that only one of the
attesting witnesses, namely, Varadan was examined as PW2, as the
other attesting witness, namely, Dakshinamurthy was not alive to be
examined so as to corroborate the genuineness of the will which is
permissible in law.                                                             F
      28. In Paragraphs 8 to 11 of the judgment, the Division Bench of
the High Court has observed as under:
      “8. This Court has also verified the signatures of the testator in
      the will with those of the signatures available in the previous
      documents namely, Ex-P2 school Leaving Certificate, and Ex-               G
      P3, Building Plan. On verification, this Court has no hesitation to
      hold that the signatures available in the will are tallied with the
      signatures available in the School Leaving Certificate and the
      Building Plan. Though it is stated by the respondents that the legates
      filed matrimonial petition against the appellant, in the absence of       H
848            SUPREME COURT REPORTS                            [2021] 14 S.C.R.


A           any order thereon, this Court cannot give much importance to
            such proceedings. Also, the respondents filed a suit for partition
            of the suit property on the file of IV Assistant City Civil Court,
            Chennai, which is stated to be pending.
            9. It is argued by the learned counsel for the respondents that
B           there is an inordinate delay in initiating the proceedings for probate
            of the will. In this context, it is to be stated that the time taken and
            the reasons adduced for initiation of probate proceedings are the
            factors to be considered on the peculiar facts and circumstances
            of this case. Hence, the said argument fails.
C           10. The proof and validity of the will has to be examined on the
            settled propositions of law such as the evidence of the attestor,
            comparison of signatures of the testator, legal principles, intention
            of the testator and other circumstances. However, the learned
            single Judge proceeded on the sole ground that the will had not
            been probated for a long time. Therefore, the reasoning given by
D           the learned single Judge cannot be sustained, as the legal principles
            are not properly follows.
            11. For the foregoing reasons and in view of the discussion made
            above, the judgment of the learned single Judge is legally infirmed
            and the same is set aside. As such, this O.S.A. is allowed. No
E           costs. Consequently, the connected C.M.P.No.9517 of 2006 and
            1492 of 2008 are closed.”
             29. With the aforesaid observations, the judgment of the learned
      Trial Judge was reversed by the Division Bench.

F            30. Before considering the correctness of the impugned judgment
      of the Division Bench of the High Court, it would be useful to refer to
      the following judgments of this Court on proof of wills:
             (a) One of the celebrated decisions of this Court on proof of a
      will, reported in AIR 1959 SC 443 is in the case of H.Venkatachala
      Iyenger vs. B.N.Thimmajamma, wherein this Court has clearly
G
      distinguished the nature of proof required for a testament as opposed to
      any other document. The relevant portion of the said judgment reads as
      under:-
            “18. The party propounding a will or otherwise making a claim
            under a will is no doubt seeking to prove a document and, in
H
     MURTHY & ORS. v. C. SARADAMBAL & ORS.                               849
             [B. V. NAGARATHNA J.]

deciding how it is to be proved, we must inevitably refer to the         A
statutory provisions which govern the proof of documents. Sections
67 and 68, Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be signed by any
person, the signature of the said person must be proved to be in
his handwriting, and for proving such a handwriting under Sections
                                                                         B
45 and 47 of the Act the opinions of experts and of persons
acquainted with the handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the execution of the
document required by law to be attested; and it provides that such
a document shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its execution.       C
These provisions prescribe the requirements and the nature of
proof which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and 63 of the
Indian Succession Act are also relevant. Section 59 provides that
every person of sound mind, not being a minor, may dispose of his
                                                                         D
property by will and the three illustrations to this section indicate
what is meant by the expression “a person of sound mind” in the
context. Section 63 requires that the testator shall sign or affix his
mark to the will or it shall be signed by some other person in his
presence and by his direction and that the signature or mark shall
be so made that it shall appear that it was intended thereby to give     E
effect to the writing as a will. This section also requires that the
will shall be attested by two or more witnesses as prescribed.
Thus the question as to whether the will set up by the propounder
is proved to be the last will of the testator has to be decided in the
light of these provisions. Has the testator signed the will? Did he
                                                                         F
understand the nature and effect of the dispositions in the will?
Did he put his signature to the will knowing what it contained?
Stated broadly it is the decision of these questions which determines
the nature of the finding on the question of the proof of wills. It
would prima facie be true to say that the will has to be proved like
any other document except as to the special requirements of              G
attestation prescribed by Section 63 of the Indian Succession Act.
As in the case of proof of other documents so in the case of proof
of wills it would be idle to expect proof with mathematical certainty.
The test to be applied would be the usual test of the satisfaction
of the prudent mind in such matters.”
                                                                         H
850            SUPREME COURT REPORTS                           [2021] 14 S.C.R.


A           In fact, the legal principles with regard to the proof of a will are
      no longer res integra. Section 63 of the Indian Succession Act, 1925
      and Section 68 of the Evidence Act, 1872, are relevant in this regard.
      The propounder of the will must examine one or more attesting witnesses
      and the onus is placed on the propounder to remove all suspicious
      circumstances with regard to the execution of the will. In the above
B
      noted case, this Court has stated that the following three aspects must
      be proved by a propounder:-
            “(i) that the will was signed by the testator in a sound and disposing
            state of mind duly understanding the nature and effect of disposition
            and he put his signature on the document of his own free will, and
C
            (ii) when the evidence adduced in support of the will is disinterested,
            satisfactory and sufficient to prove the sound and disposing state
            of the testator’s mind and his signature as required by law, courts
            would be justified in making a finding in favour of propounder, and
D           (iii) if a will is challenged as surrounded by suspicious
            circumstances, all such legitimate doubts have to be removed by
            cogent, satisfactory and sufficient evidence to dispel suspicion. In
            other words, the onus on the propounded can be taken to be
            discharged on proof of the essential facts indicated therein.”

E            (b) In Jaswant Kaur v. Amrit Kaur and others [1977 1 SCC
      369], this Court pointed out that when a will is allegedly shrouded in
      suspicion, its proof ceases to be a simple lis between the plaintiff and
      the defendant. What generally is an adversarial 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 let in by the
F     propounder of the will is such as would satisfy the conscience of the
      Court that the will was duly executed by the testator. It is impossible to
      reach such a satisfaction unless the party which sets up the will offers
      cogent and convincing explanation with regard to any suspicious
      circumstance surrounding the making of the will.
G           (c) In Bharpur Singh and others v. Shamsher Singh [2009 (3)
      SCC 687], at Para 23, this Court has narrated a few suspicious
      circumstance, as being illustrative but not exhaustive, in the following
      manner:-
            “23. Suspicious circumstances like the following may be found to
H           be surrounded in the execution of the will:
           MURTHY & ORS. v. C. SARADAMBAL & ORS.                                851
                   [B. V. NAGARATHNA J.]

      (i) The signature of the testator may be very shaky and doubtful          A
      or not appear to be his usual signature.
      (ii) The condition of the testator’s mind may be very feeble and
      debilitated at the relevant time.
      (iii) The disposition may be unnatural, improbable or unfair in the
      light of relevant circumstances like exclusion of or absence of           B
      adequate provisions for the natural heirs without any reason.
      (iv) The dispositions may not appear to be the result of the testator’s
      free will and mind.
      (v) The propounder takes a prominent part in the execution of the
                                                                                C
      will.
      (vi) The testator used to sign blank papers.
      (vii) The will did not see the light of the day for long.
      (viii) Incorrect recitals of essential facts.”
                                                                                D
      It was further observed that the circumstances narrated
hereinbefore are not exhaustive. Subject to offering of a reasonable
explanation, existence thereof must be taken into consideration for the
purpose of arriving at a finding as to whether the execution of the will
had been duly proved or not. It may be true that the Will was a registered
one, but the same by itself would not mean that the statutory requirements      E
of proving the will need not be complied with.
     (d) In Naranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, [(2006)
13 SCC 433], in Paras 34 to 37, this Court has observed as under:-
      “34. There are several circumstances which would have been
      held to be described by this Court as suspicious circumstances:           F

             (i)     when a doubt is created in regard to the condition of
                     mind of the testator despite his signature on the will;
             (ii)    When the disposition appears to be unnatural or wholly
                     unfair in the light of the relevant circumstances;
                                                                                G
             (iii)   where propounder himself takes prominent part in
                     the execution of will which confers on him substantial
                     benefit.
      35. We may not delve deep into the decisions cited at the Bar as
      the question has recently been considered by this Courts in               H
852            SUPREME COURT REPORTS                         [2021] 14 S.C.R.


A           B.Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC
            449], wherein this Court has held that the court must satisfy its
            conscience as regards due execution of the will by the testator
            and the court would not refuse to probe deeper into the matter
            only because the signature of the propounder on the will is
            otherwise proved.
B
            36. The proof of a will is required not as a ground of reading the
            document but to afford the Judge reasonable assurance of it as
            being what it purports to be.
            37. We may, however, hasten to add that there exists a distinction
C           where suspicions are well founded and the cases where there are
            only suspicions alone. Existence of suspicious circumstances alone
            may not be sufficient. The court may not start with a suspicion
            and it should not close its mind to find the truth. A resolute and
            impenetrable incredulity is not demanded from the Judge even if
            there exist circumstances of grave suspicion.”
D
            (e) This Court in Anil Kak v. Sharada Raje, [(2008) 7 SCC 695],
      held as under:-
            “20. This Court in Anil Kak v. Sharada Raje opined that the
            court is required to adopt a rational approach and is furthermore
E           required to satisfy its conscience as existence of suspicious
            circumstances plays an important role, holding:
               52. Whereas execution of any other document can be proved
               by proving the writings of the document or the contents of it as
               also the execution thereof, in the event there exists suspicious
F              circumstances the party seeking to obtain probate and/or letters
               of administration with a copy of the will annexed must also
               adduce evidence to the satisfaction of the court before it can
               be accepted as genuine.
               53. As an order granting probate is a judgment in rem, the
               court must also satisfy its conscience before it passes an order.
G
               54. It may be true that deprivation of a due share by (sic to)
               the natural heir by itself may not be held to be a suspicious
               circumstance but it is one of the factors which is taken into
               consideration by the courts before granting probate of a
               will.
H
            MURTHY & ORS. v. C. SARADAMBAL & ORS.                               853
                    [B. V. NAGARATHNA J.]

          55. Unlike other documents, even animus attestandi is a               A
          necessary ingredient for proving the attestation.”
     (f) Similarly, in Leela Rajagopal and others v. Kamala Menon
Cocharan and others, [(2014) 15 SCC 570], this Court opined as under:-
      “13. A will may have certain features and may have been executed
      in certain circumstances which may appear to be somewhat                  B
      unnatural. Such unusual features appearing in a will or the
      unnatural circumstances surrounding its execution will definitely
      justify a close scrutiny before the same can be accepted. It is the
      overall assessment of the court on the basis of such scrutiny; the
      cumulative effect of the unusual features and circumstances which         C
      would weigh with the court in the determination required to be
      made by it. The judicial verdict, in the last resort, will be on the
      basis of a consideration of all the unusual features and suspicious
      circumstances put together and not on the impact of any single
      feature that may be found in a will or a singular circumstance that
      may appear from the process leading to its execution or                   D
      registration. This, is the essence of the repeated pronouncements
      made by this Court on the subject including the decisions referred
      to and relied upon before us.
       31. In light of the aforesaid discussion, the validity of will (Ex-P1)
said to be the last will and testament of deceased E. Srinivasa Pillai shall    E
be considered. On a reading of will (Ex-P1), we note that immovable
property bearing House No.6/1 Azeez Nagar, 2 nd Street, Kodambakkam,
Madras – 600024 and the building situate on it being about two grounds
which was bought by the testator in the year 1953 is the subject matter
of the bequest to his son S. Damodaran a practising advocate at Madras.         F
The will further recites as under :
      “I desire that this house should go to my son S. Damodaran and
      he must inherit without any conditions and I herein transfer it
      absolutely to him with all powers inclusive of disposing it off if
      necessary. No other person should have any claim over it. As I            G
      am sick and getting weak, I write and sign this will in the presence
      of these two witnesses who are present before me on this the 4th
      day of January, 1978 and put my signature in their presence.”
      At this stage we note that the will itself recites that the testator
was sick and getting weak.
                                                                                H
854                SUPREME COURT REPORTS                         [2021] 14 S.C.R.


A           32. Learned counsel for the appellants has adumbrated on the
      following suspicious circumstances in the execution of the will. They
      can be succinctly stated as under:
            (i)      Date of the will and date of death of the testator being too
                     close throws a doubt on the sound disposing state of mind
B                    of the testator.
            (ii)     Testator was bedridden prior to his death as he was suffering
                     from paralysis.
            (iii)    Attestor (PW2) being known to the first plaintiff, the
                     propounder of the will, but not to the deceased testator.
C
            (iv)     The husband of the first plaintiff and son of the testator,
                     who was a practicing advocate, was unaware of the
                     execution of the will during his lifetime.
            (v)      The signature on the will (Ex-P1) does not tally with the
D                    signatures of the testator on Ex-P2 (SSLC Register) and
                     Ex-P3 (Extract of sanction plan).
            (vi)     The evidence of PW1 and PW2 is not credible.
            (vii)    There exists discrepancy in the evidence of PW1 and PW2.
            (viii) That the respondents-plaintiffs have failed to prove the will
E                  to the satisfaction of the conscience of the Court and have
                   not removed the suspicious circumstances in the execution
                   of the will.
            33. We shall now discuss each of the aforesaid aspects.

F           (a)      The date of the will (Ex-P1) is 04th January, 1978. The
                     testator E. Srinivasa Pillai died on 19th January, 1978, within
                     a period of fifteen days from the date of execution of the
                     will. Even on reading of the will, it is noted that the testator
                     himself has stated that he was sick and getting weak even
                     then he is stated to have “written” the will himself which is
G                    not believable. It has been deposed by PW2, one of the
                     attestors of the will, that the will could not be registered as
                     the testator was unwell and in fact, he was bedridden. It
                     has also come in evidence that the testator had suffered a
                     paralytic stroke which had affected his speech, mobility of
H                    his right arm and right leg. He was bedridden for a period
      MURTHY & ORS. v. C. SARADAMBAL & ORS.                                 855
              [B. V. NAGARATHNA J.]

       of ten months prior to his death. Taking the aforesaid two           A
       circumstances into consideration, a doubt is created as to
       whether the testator was in a sound and disposing state of
       mind at the time of making of the testament which was
       fifteen days prior to his death.
(b)    No evidence of the doctor who was treating the testator              B
       has been placed on record so as to prove that the testator
       was in a sound and disposing state at the time of the execution
       of the will.
(c)    The fact that the testator died within a period of fifteen
       days from the date of the execution of the will, casts a             C
       doubt on the thinking capacity and the physical and mental
       faculties of the testator. The said suspicion in the mind of
       the Court has not been removed by the propounder of the
       will i.e. first plaintiff by producing any contra medical
       evidence or the evidence of the doctor who was treating
       the testator prior to his death.                                     D

(d)    In this context, it would be useful to place reliance on Section
       63 of the Indian Succession Act, 1925 which categorically
       states that the testator has to sign on the will and the signature
       of the testator must be such that it would “intend” thereby
       to give effect to the writing of a will. Hence, the                  E
       genuineness of the will must be proved by proving the
       intention of the testator to make the testament and for that,
       all steps which are required to be taken for making a valid
       testament must be proved by placing concrete evidence
       before the Court. In the instant case, there is no evidence          F
       as to whom the testator gave instructions to, to write the
       will. The scribe has also not been examined. It is also not
       known as to whether the assistance of an advocate or any
       other trustworthy person was taken by the testator in order
       to make the testament and bequeath the property to only
       the son of the testator.                                             G
(e)    Apart from that, Section 63(c) of the Indian Succession
       Act, 1925, firstly states that the will has to be attested by
       two or more witnesses/attestators, each of whom should
       have seen the testator sign on the will in his presence, or
       has received from the testator, a personal acknowledgment            H
856   SUPREME COURT REPORTS                         [2021] 14 S.C.R.


A       of his signature on the will. Secondly, each of the witnesses
        shall sign on the will in the presence of the testator but it
        shall not be necessary that more than one witness be
        present at the same time, and no particular form of
        attestation is necessary. The aforesaid two mandatory
        requirements have to be complied with for a testament to
B
        be valid from the point of view of its execution. In the instant
        case, there are two attestors namely, PW2-Varadan and
        Dakshinmurthy and the latter had died. The evidence on
        record has to be as per Section 68 of the Indian Evidence
        Act, 1872 which deals with proof of documents which
C       mandate attestation. In order to prove the execution of the
        document such as a testament, at least one of the attesting
        witnesses who had attested the same must be called to
        give evidence for the purpose of proof of its execution.
        Since one of the attestors, namely, Dakshinmurthy had died,
        PW2, Varadan had given his evidence as one of the attestors
D
        of the will. However, the deposition of PW2 is such that it
        is fatal to the case of the plaintiffs. The evidence of PW2
        could be highlighted as under:
        (i)     He was a friend of the testator and he was frequently
                visiting the testator once in two or three days.
E
        (ii)    He signed as the first attesting witness on Ex-P1
                and Dakshinmurthy signed as second attesting
                witness and the testator saw both the attestors signing
                Ex-P1. However, he has deposed that it was not
                possible to take the testator to the Registrar’s office
F               for registering the will as the testator was not in a
                sound condition and he was very seriously ill, he was
                suffering from paralysis.
        (iii)   He has admitted that testator was suffering from
                paralysis of right hand and right leg and prior to his
G               death, was sick for about 10 months and was confined
                to his house and not in a position to write.
        (iv)    PW2 has also stated that he had not disclosed about
                the will to S. Damodaran, the son of the testator and
                during his lifetime, S. Damodaran was unaware of
H               the will executed by his father.
      MURTHY & ORS. v. C. SARADAMBAL & ORS.                               857
              [B. V. NAGARATHNA J.]

       (v)    S. Damodaran, (who was a practicing advocate) lived         A
              for about eleven years after the execution of will
              (Ex-P1) and since he was unaware of the will
              executed by his father, he did not take steps to seek
              probate of the will.
       (vi)   He has also admitted that he signed the affidavit in        B
              the suit on the instructions and as requested by the
              counsel.
(f)    The Trial Court has not believed the evidence of PW2. It is
       highly improbable that the only son of the testator who was
       a practicing advocate and on whom the bequest of the house         C
       was made, was unaware of the execution of the will by his
       father. It is unnatural that the father would not have disclosed
       to his only son about the bequest of the property, (particularly
       when the son was a practicing advocate) and had also not
       taken his son’s assistance in the drafting as well as execution
       of the will.                                                       D

(g)    Learned counsel for the appellants has drawn our attention
       to the fact that the signature of the testator on the will (Ex-
       P1) does not tally with his signatures on Ex-P2 and Ex-P3.
       We have compared the said signatures. Even though the
       said signatures on the aforesaid documents have been made          E
       at different points of time, we find they are totally dissimilar
       inasmuch as the signatures on Ex-P2 and P3 do not resemble
       each other and the signature on the will (Ex-P1) is dissimilar
       to the signatures of testator on Ex-P2 and P3, particularly
       the letter ‘E’. This fact raises a suspicion in the mind of this   F
       Court as to whether the signature on Ex-P1 was really that
       of the testator. Further if really the testator had himself
       written the will the fonts of the recital of the will and his
       signature do not at all match.
(h)    It was also contended that the evidence of PW1, the                G
       propounder of the will, does not inspire confidence. We shall
       highlight the same:
       (i)    PW1 has stated that Ex-P1 was executed about
              fifteen days prior to the death of the testator who
              was her father-in-law and the same was in the
                                                                          H
858   SUPREME COURT REPORTS                          [2021] 14 S.C.R.


A               custody of the testator. Ex-P1 has seen light of the
                day, only after the demise of the testator’s son who
                was unaware of the will and during the pendency of
                the suit filed by the appellants herein seeking partition
                and separate possession of the property or the estate
                left behind by their father. There is no explanation
B
                regarding the custody of the will after the demise of
                the testator and for over fifteen years.
        (ii)    PW1 has stated that the will was kept in a secret
                place in her husband’s almirah and that she took it
C               out only after fifteen days of his death. This admission
                implies that only PW1 was aware of the execution
                of the will as well as the secret place where it was
                kept. If the will was in the custody of the testator as
                deposed by PW1, there is no explanation as to how
                the document found a place in the almirah belonging
D               to her husband, particularly, when the testator was
                bedridden during the last few months (ten months)
                before his demise and was not in a position to move
                around.
        (iii)   PW1 has stated that the will was written by a person
E               known to her father-in-law but the name of the person
                who wrote the will has not been mentioned therein.
                There is no mention of or evidence of the scribe of
                the will.
        (iv)    PW1 has also admitted that no date has been
F
                mentioned on top of the will. Thus, the date of the
                execution of the will has also not found a place on
                Ex-P1. This aspect also casts a doubt as to whether
                the will was executed by the testator during his
                lifetime.
G
        (v)     PW1 has stated that Ex-P1 was executed by her
                father-in-law and she was present when it was
                executed but PW2, the attestor has stated that PW1
                was outside the room at the time of execution of the
                will.
H
            MURTHY & ORS. v. C. SARADAMBAL & ORS.                               859
                    [B. V. NAGARATHNA J.]

             In view of the above, we find much force in the submission         A
             of appellant’s counsel.
      (i)    On the other hand, the evidence of DW1 in relation to the
             fact that the testator was not in a good health and he was
             suffering from a paralytic attack and was not in a position
             to write, is in corroboration with what PW2 has also               B
             admitted in his evidence, that the testator could not be taken
             to the sub-Registrar’s office for the registration of the will
             as he was suffering from a paralytic stroke.
      (j)    It has also come in evidence that there was no cordial
             relationship between the first plaintiff and her husband S.        C
             Damodaran and in fact proceedings for dissolution of
             marriage were initiated which became infructuous on his
             demise.
       34. For the aforesaid reasons, we hold that the respondents-
plaintiffs have not been successful in proving the validity of the will in      D
accordance with law inasmuch as the suspicious circumstances
surrounding the very execution of the will have not been cleared by any
cogent evidence, rather, the genuineness of Ex-P1 remains in doubt. It is
observed that the will (Ex-P1) did not come into existence at the instance
of the testator but it is a concocted document and has been got up after
the demise of S. Damodaran.                                                     E

      35. In view of the aforesaid discussion, we hold that the
respondents-plaintiffs have failed to prove the will (Ex-P1) in accordance
with law inasmuch as they have not removed the suspicious
circumstances, surrounding the execution of the will. Hence, Ex-P1, not
being a valid document in the eye of law, no Letters of Administration          F
can be granted to the respondents-plaintiffs.
        36. In the circumstances, we hold that the learned Trial Judge
was right in dismissing the suit. However, the Appellate Court being the
Division Bench has reversed the judgment and decree passed by the
Trial Court and has decreed the suit. On extracting the relevant portions       G
of the judgment of the Appellate Court, which consists of eleven
paragraphs, it is found that the same has been written in a cryptic manner.
It is observed that the judgment could be brief and succinct if the Appellate
Court is to dismiss an appeal and affirm the judgment and decree of the
Trial Court. But when the judgment and decree of the Trial court is to be
                                                                                H
860             SUPREME COURT REPORTS                            [2021] 14 S.C.R.


A     reversed then it is incumbent upon the Appellate Court to dwell into the
      matter in detail and to give reasons for reversing the same. Assigning
      reasons not only makes the judgment wholesome, but is also necessary
      in order to deduce and lead to just conclusions.
              37. Before parting with this case, we would like to reiterate that
B     in this case, the High Court has dealt with the judgment of the learned
      Trial Judge in a short cut method, bereft of all reasoning while reversing
      the judgment of the Trial Court both on facts as well as law. It is trite
      that the Appellate Court has jurisdiction to reverse, affirm or modify the
      findings and the judgment of the Trial Court. However, while reversing
      or modifying the judgment of a Trial Court, it is the duty of the Appellate
C     Court to reflect in its judgment, conscious application of mind on the
      findings recorded supported by reasons, on all issues dealt with, as well
      as the contentions put forth, and pressed by the parties for decision of
      the Appellate Court. No doubt, when the Appellate Court affirms the
      judgment of a Trial Court, the reasoning need not to be elaborate although
D     reappreciation of the evidence and reconsideration of the judgment of
      the Trial Court are necessary concomitants. But while reversing a
      judgment of a Trial Court, the Appellate Court must be more conscious
      of its duty in assigning the reasons for doing so.
             38. In this regard, we may usefully rely upon a judgment of this
E     Court in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs -
      (2001) 3 SCC 179, wherein it has been observed that while writing a
      judgment of reversal, an Appellate Court must remain conscious of two
      principles. Firstly, the findings of facts based on conflicting evidence
      arrived at by the Trial Court must weigh with the Appellate Court, more
      so when the findings are based on oral evidence recorded by the same
F     Presiding Judge who authors the judgment. If, on an appraisal of the
      evidence, it is found that the judgment of the Trial Court suffers from a
      material irregularity or is based on inadmissible evidence or on conjectures
      and surmises, the Appellate Court is entitled to interfere with the finding
      of fact but by assigning cogent reasons for doing so. Otherwise, the
G     findings of the Trial Court should not be interfered with lightly on a question
      of fact. Secondly, while reversing a finding of fact, it is necessary that
      the Appellate Court assigns its own reasons for doing so. This is especially
      so in case there are further appeals under Section 100 of the Code of
      Civil Procedure, 1908, as the first Appellate Court is the final court of
      facts and the said findings are immune from challenge in a second appeal.
H
           MURTHY & ORS. v. C. SARADAMBAL & ORS.                                 861
                   [B. V. NAGARATHNA J.]

       39. In B.V. Nagesh v. H.V. Sreenivasa Murthy – (2010) 13                  A
SCC 530, this Court taking note of all the earlier judgments of this Court
reiterated the aforementioned principle in these words : (SCC pp.530-
31, paras 3-5)
      “3. How the regular first appeal is to be disposed of by the appellate
      court/High Court has been considered by this Court in various              B
      decisions. Order 41 CPC has been considered by this Court in
      various decisions. Order 41 CPC deals with appeals from original
      decrees. Among the various rules, Rule 31 mandates that the
      judgment of the appellate court shall state :
          (a)   the points for determination;                                    C
          (b)   the decision thereon;
          (c)   the reasons for the decision; and
          (d)   where the decree appealed from is reversed or varied,
                the relief to which the appellant is entitled.                   D
      4. the appellate court has jurisdiction to reverse or affirm the
      findings of the trial court. The first appeal is a valuable right of the
      parties and unless restricted by law, the whole case is therein
      open for rehearing both on questions of fact and law. The judgment
      of the appellate court must, therefore, reflect its conscious
                                                                                 E
      application of mind and record findings supported by reasons, on
      all the issues arising along with the contentions put forth, and
      pressed by the parties for decision of the appellate court. Sitting
      as a court of first appeal, it was the duty of the High Court to deal
      with all the issues and the evidence led by the parties before
      recording its findings. The first appeal is a valuable right and the       F
      parties have a right to be heard both on questions of law and on
      facts and the judgment in the first appeal must address itself to all
      the issues of law and fact and decide it by giving reasons in support
      of the findings. (Vide Santosh Hazari v. Purushottam Tiwari –
      (2001) 3 SCC 179 at p.188 para 15 and Madhukar v. Sangram –
                                                                                 G
      (2001) 4 SCC 756 at p.758, para 5.”
       40. To a similar effect, are the observation of this Court in Vinod
Kumar v. Gangadhar - (2015) 1 SCC 391, wherein it has been observed
that in a first appeal under Section 96 of the Code of Civil Procedure,
1908, the scope and powers conferred on the First Appellate Court are
                                                                                 H
862              SUPREME COURT REPORTS                        [2021] 14 S.C.R.


A     delineated in Order XLI of the Code and grounds raised in the appeal,
      reappreciation of evidence adduced by the parties and application of the
      relevant legal principles and decided case law have to be considered
      while deciding whether the judgment of the Trial Court can be sustained
      or not.
B            41. It is also necessary to observe that the right to appeal is a
      creature of statute. The right to file an appeal by an unsuccessful party
      assailing the judgment of the Original Court is a valuable right and hence
      a duty is cast on the Appellate Court to adjudicate a first appeal both on
      questions of fact and applicable law. Hence, the reappreciation of
      evidence in light of the contentions raised by the respective parties and
C     judicial precedent and the law applicable to the case have to be
      conscientiously dealt with.
             42. In the instant case, the Division Bench of the High Court has
      simply reversed the judgment of the learned Trial Judge in the absence
      of reappreciation of evidence and without giving findings on questions of
D     fact as well as on the applicable law and by not reasoning as to why the
      judgment of the learned Trial Judge was erroneous.
             43. In the circumstances, we set aside the judgment and decree
      of the Division Bench of the High Court dated 08 th December, 2008 in
      O.S.A 470 of 2002 and restore the judgment of the Learned Trial Judge
E     passed in O.T.S No. 20/1994 dated 14th January, 2000 by allowing instant
      appeal.
             44. Having regard to the relationship between the parties, they
      shall bear their respective costs.

F            45. Interlocutory applications, if any, stand disposed.

      Devika Gujral                                                Appeal allowed.




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