Holding

The High Court was right to declare the Will non‑genuine and no remand was required as the appellate court could finally decide the suit on the existing evidence.

Summary

The plaintiffs filed a suit claiming ownership of several properties on the basis of a Will dated 20‑05‑1991 executed by the deceased Sri Sangappa and sought to declare a trust created by the defendants void. The defendants challenged the genuineness of the Will, pointing to numerous irregularities such as the use of different sheets of paper, inconsistent placement of signatures, use of different pens, and unsigned pages. The Trial Court accepted the Will as valid, but the High Court reversed that decision, holding the Will was not genuine due to the cumulative suspicious features. On appeal, the Supreme Court examined the statutory requirements of the Indian Succession Act and the Evidence Act, and affirmed that the High Court was correct in rejecting the Will and that no remand was warranted because the evidence on record was sufficient. Consequently, the appeal was dismissed, leaving the parties to bear their own costs.

Issues considered

Whether the High Court was justified in reversing the Trial Court's finding and holding that the Will dated 20‑05‑1991 was not a genuine document.
Whether the appellate court should have remanded the case to the Trial Court under Order XLI Rules 23, 23A or 24 of the CPC.
Whether the Will complied with the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
Whether the presence of suspicious circumstances surrounding the execution of the Will defeats the presumption of validity.

Legislation cited

Code of Civil Procedure, 1908s. Order XLI Rule 23, s. Order XLI Rule 23A, s. Order XLI Rule 24, s. Order XLI Rule 25, s. Section 92
Indian Evidence Act, 1872s. 45, s. 47, s. 68
Indian Succession Act, 1925s. 59, s. 61, s. 62, s. 63, s. 68

Subjects

WillGenuineness of WillSuccession ActEvidence ActSuspicious circumstancesRemandOrder XLI CPCCivil appealDeclaration and injunctionTrust validity

Judgment

666 [2020]REPORTS
SUPREME COURT 6 S.C.R. 666 [2020] 6 S.C.R.

A SHIVAKUMAR & ORS.
v.
SHARANABASAPPA & ORS.
(Civil Appeal No. 6076 of 2009)
B APRIL 24, 2020
[A. M. KHANWILKAR, HEMANT GUPTA AND
DINESH MAHESHWARI, JJ.]
Will – Genuineness of – Plaintiff-Appellants filed a civil suit
for declaration and injunction that they had acquired ownership
C
rights in the suit properties on the basis of a Will dated 20.05.1991
executed by one ‘S’ and that the Trust created by defendants in
relation to the suit properties was illegal and void – The defendants
questioned the genuineness of the alleged Will – The Trial Court
decided the principal issue related to the Will in favour of the
D plaintiffs – However, the High Court reversed the decision of Trial
Court on the principal issue relating to the genuineness of the Will
– On appeal, held: In the instant case, there were unnatural and
unusual features in the document/Will in question – Different sheets
of paper had been used in preparation of Will; placement of the
signatures of the testator was at least at two places beyond normal
E
distance from the last typed matter; in making of three signatures,
at least two different pens were used; the front facing pages number
1,3 and 5 carried the signatures of the testator, the backside pages,
i.e. pages 2 and 4 were unsigned – Further, several blank spaces
were found in relation to the particulars of the properties and even
F some of the properties were not correctly described – There was
recital in the document of a past event (about vacating of the shop
by tenant) in the manner that such event shall happen in future – In
the opening passage of the document, the recital was to the effect
that the testator was making Will because so many accidents do
happen – The fact remain that testator died in an accident on
G
20.05.1994 and Will was made on 20.05.1991 – That apart, the
plaintiffs never took steps to get the statement of the person, who
was otherwise referred to by all the material witnesses as being the
person before whom the document was allegedly opened – The
unexplained, unusual and abnormal features pertaining to the
H document only lead to a logical deduction that the document in
666
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 667

question was prepared after the demise of the testator ‘S’ with use A
of blank signed papers that came in possession of the propounders
and their associates – The High Court was right in reversing the
decision of the Trial Court and in holding that the contested Will
was not a genuine document.
Code of Civil Procedure, 1908 – Or.XLI, rr.23, 23A, 24 and B
25 – Order of remand by the Appellate Court – Held: A conjoint
reading of Rules 23, 23A and 24 of Or.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 r.24 of Or.XLI CPC
and to determine the suit finally – It is only in such cases where the C
decree in challenge is reversed in appeal and re-trial is considered
necessary that the Appellate Court shall adopt the course of
remanding case.
Dismissing the appeal, the Court
D
HELD: 1. The High Court 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 view of this Court,
the observations and findings of the High Court remain E
unexceptionable. [Para 14][706-G]
2. 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 F
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 G
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
H
668 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 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,
B
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.
C 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 document. [Para 15.5.][709-G-H;
710-A-E]
D
3. 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
E 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
F 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 recitals. [Para 16][710-F-H; 711-D]
G 4. 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

H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 669

testator was making the Will because so many accidents do A
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 accident. [Para 17][711-B-C]
B
5. Much emphasis is laid on behalf of the appellants on the
submissions that execution of the Will in accordance with the
requirements of Section 63 of the Succession Act and Section 68
of the Evidence Act has been duly established on record with the
testimony of the attesting witnesses as also the witness with whom
the Will along with the handwritten draft of the Will had been C
deposited by the testator. The 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 D
and the suspicions have not been removed, the document in
question cannot be accepted as a Will. [Para 20][712-D-F]
6. 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 E
testator, 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 opened. [Para 23][713-E-G] F

7. In view of this Court, the document in question falls flat
at the very first question indicated in the case of H. Venkatachala
Iyenger 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, G
propounded as a Will, is non-compliant with the requirements of
clause (b) of Section 63 of the Succession Act. [Para 24]
[713-G-H]

H
670 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 8. 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
B
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
C 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
D
remand or where remand would be rather necessary depending
on the facts and the given set of circumstances of a case. [Para
25.4][716-B-E]
H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors.
AIR 1959 SC 443 : [1959] Suppl. SCR 426; P.P.K.
E Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and
Ors. (1995) Supp 2 SCC 664 : [1995] 2 SCR 585; K.
Laxmanan v. Thekkayil Padmini and Ors. : (2009) 1
SCC 354 : [2008] 16 SCR 1117; Smt. Jaswant Kaur v.
Smt. Amrit Kaur and Ors. (1977) 1 SCC : [1977] 1
F SCR 925 – relied on.
Smt. Indu Bala Bose and Ors. v. Manindra Chandra
Bose and Anr. (1982) 1 SCC 20 : [1982] 1 SCR 1188;
Uma Devi Nambiar and Ors. v. T.C. Sidhan (2004) 2
SCC 321 : [2003] 6 Suppl. SCR 637; Mahesh Kumar
G (dead) by LRs v. Vinod Kumar and Ors (2012) 4 SCC
387; Mohan Kumar v. State of Madhya Pradesh and
Ors. (2017) 4 SCC 92 : [2017] 2 SCR 889; Shashi
Kumar Banerjee and Ors. v. Subodh Kumar Banerjee
and Ors. AIR 1964 SC 529 – referred to.

H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 671

Case Law Reference A
[1982] 1 SCR 1188 referred to Para 6.1
[1977] 1 SCR 925 relied on Para 6.1
[1959] Suppl. SCR 426 relied on Para 7
[1982] 1 SCR 1188 referred to Para 7.1 B
[1995] 2 SCR 585 relied on Para 7.1
[2003] 6 Suppl. SCR 637 referred to Para 7.1
(2012) 4 SCC 387 referred to Para 7.2
C
[2017] 2 SCR 889 referred to Para 7.3
[2008] 16 SCR 1117 relied on Para 8
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6076
of 2009.
From the Judgment and Order dated 26.10.2007 of the High Court D
of Karnataka at Bangalore in RFA No. 910 of 2001.
K. Radhakrishnan, Sr. Adv., M/s. Lawyer S. Knit & Co., Adv. for
the Appellants.
Rajesh Mahale, Ms. Anjana Chandrashekar, Advs. for the
E
Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
PRELIMINARY AND BRIEF OUTLINE
F
1. By way of this appeal, the plaintiff-appellants have challenged
the judgment and decree dated 26.10.2007 passed by the High Court of
Karnataka at Bangalore in Regular First Appeal No. 910 of 2001
whereby, the High Court reversed the judgment and decree dated
12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppal
in Original Civil Suit No. 56 of 1994. G

1.1 The civil suit aforesaid was filed by the plaintiff-appellants for
declaration and injunction, essentially with the submissions that they
had acquired ownership rights in the suit properties (described in
Schedules A to D attached to the plaint) on the basis of a Will dated
H
672 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 20.05.1991 executed by the owner of the said properties Sri Sangappa
son of Pampanna Shettar of Koppal; and that a trust created by the
defendants on 28.05.1994, in the name “Shri Sangappa Pampanna
Gadagshettar Trust, Koppal” in relation to the suit properties, was illegal,
void and not binding on the plaintiffs. The contesting defendants i.e.,
B defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while
questioning the genuineness of the alleged Will dated 20.05.1991. The
defendant No. 7, one of the erstwhile trustees of the said trust, however,
admitted and endorsed the claim of the plaintiffs.
1.2 After framing necessary issues and after taking the oral and
C documentary evidence adduced by the parties, the Trial Court, in its
judgment dated 12.09.2001, decided the principal issue relating to the
said Will dated 20.05.1991 in favour of the plaintiffs and, while also
returning its findings on other necessary issues in favour of the plaintiffs,
proceeded to decree the suit with declaration that the trust created by
D the defendants on 28.05.1994 was not binding on the plaintiffs, particularly
in relation to the suit properties; and that the plaintiffs were owners of
the suit properties as claimed. The Trial Court also issued injunction against
defendant Nos. 1 to 5 that they shall not interfere with the plaintiffs’
peaceful possession and enjoyment of the suit properties.
1.3 The judgment and decree so passed by the Trial Court were
E
questioned by the contesting defendants in the High Court by way of the
said first appeal. The High Court, in its impugned judgment dated
26.10.2007 proceeded to allow the appeal while reversing the decision
of Trial Court on the principal issue relating to the genuineness of the
Will in question. The High Court found several unexplained suspicious
F circumstances as also discrepancies in the Will in question and held that
the alleged Will dated 20.05.1991 was not a genuine document. Being
aggrieved, the plaintiffs have preferred the instant appeal.
THE LEAD PERSONS, PARTIES, WITNESSES AND
DOCUMENTS AS ALSO THE PROPERTIES INVOLVED
G
2. It is but apparent that genuineness of the Will dated 20.05.1991,
said to have been executed by Sri Sangappa son of Pampanna Shettar
of Koppal, allegedly bequeathing the suit properties to the plaintiffs, is in
question in this case.

H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 673
[DINESH MAHESHWARI, J.]

3. For comprehension of the subject-matter and for effective A
determination of the questions raised in this appeal, we may take note of
the principal persons involved in the matter with their respective roles as
also the documents and the properties in question as infra:
3.1 The testator of the Will in question:
Late Sri Sangappa son of Pampanna Shettar of Koppal. B

He was a businessman and was also the Chairman of Sri
Gavisiddeshwara V.V. Trust, Koppal (which is different than the trust
questioned in the suit). Late Smt. Mahantamma was his wife.
Undisputedly, both the testator and his wife died in a car accident C
on 20.05.1994. The testator and his wife did not have any surviving
children, as their children had died in infancy and they were issueless on
the date of their death.
3.2 The plaintiffs (the appellant Nos. 1 to 3 herein):
The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj, D
all sons of Basetteppa, claim to be the legatees under the Will in question.
They are full-brothers and are grand-nephews of the testator’s wife.
According to the plaintiffs, they were brought up by the testator and his
wife and they were staying with the testator.
3.3 The contesting defendants (Respondent Nos 1 to 4 herein): E
The defendant No. 1 Sri Sharanabasappa son of Pampanna is the
younger brother of the testator; the defendant Nos. 2 and 3 Smt.
Basavannemma and Smt. Siddama are the sisters of the testator; the
defendant No. 4 Sri Pampanna son of Basappa and defendant No. 5 Sri
Siddanna son of Fakirappa are the nephews of the testator.1-2 F
3.3.1 The defendant Nos. 6 to 8:
The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappa
and No. 8 Dr. N.S.Gaikwad were joined in the suit for being the members
of the trust created by other defendants, which was questioned by the
plaintiffs. The defendant No. 7 Sri Veerabasappa was said to be a close G

1
The defendant No. 2 Smt. Basavannemma expired during the pendency of the suit and
the fact was noted on the cause-title.
2
The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired during the
pendency of this appeal and his legal representatives were brought on record by the
order dated 30.03.2015. H
674 SUPREME COURT REPORTS [2020] 6 S.C.R.

A associate of the testator in running Gavisiddeshwar College of which,
the testator was the Chairman of Governing Body. This defendant was
not related to either of the parties; he, however, filed a separate written
statement, admitting and endorsing the claim of the plaintiffs.3
3.4 The trust in question: Sri Sangappa Pampanna Gadagshettar
B Trust: The defendants created this trust on 28.05.1994 (in the name of
the testator) with inclusion of the properties in question, to pursue
philanthropic and charitable purposes. The creation of this trust was
challenged in the suit.
3.5 Special mention: Sri Gavisiddeshwara Swami, Koppal
C (Swamiji): According to the plaintiffs, the testator was a philanthropic
and a devotee of Sri Gavisiddeshwara Swami, Koppal4; and the contested
Will was opened in the presence of Swamiji. However, Swamiji was not
examined as a witness in this case.
3.6 The key witnesses:
D PW-1 Sri Basetteppa:
He is father of the plaintiff Nos. 1 to 3. He allegedly used to assist
the testator in his business.
PW-3 Sri Radhakrishnarao and PW-4 Sri Ayyanagowda
Hiregowdar: They are claimed to be the attesting witnesses of the
E
contested Will. PW-8 Sri Bhusnoormath, Advocate:
He was a friend and advocate of the testator. Allegedly, the testator
handed over the contested Will to him in a sealed cover with the
instructions that the same was to be opened after his death, only in the
presence of Swamiji. The contested Will was allegedly opened after the
F
sudden demise of the testator and his wife in the presence of Swamiji on
29.05.1994.
3.7 Relevant exhibited documents:
Ex. P.2: Will cancellation deed 26.09.1990 whereby, the testator
G cancelled an earlier Will executed by him in the year 1974.
3
The defendant No. 6 Gurushantappa expired on 13.10.2001. He was a trustee of the
trust in question and no substitution was made in his place. The name of defendant No.
7 Veerabasappa was deleted from the array of parties before the High Court on
24.07.2006. The defendant No. 8 has remained on record as respondent No. 5 in this
appeal.
4
H Hereinafter also referred to as ‘Swamiji’.
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 675
[DINESH MAHESHWARI, J.]

Ex. P.3: Handwritten draft of the Will said to have been prepared A
by the testator and kept in the sealed cover with the executed Will.
Ex. P.4: The contested Will dated 20.05.1991.
3.8 Suit properties:
Schedule A: Consisting of the parcels of land in Sy. No. 631 and B
Sy. No. 632. These were in the name of the testator’s wife as per the
relevant records.
Schedules B, C & D: Consisting of shops and houses; admittedly
they belonged to the testator.5
SUMMARY OF THE PLEADINGS; ISSUES; AND EVIDENCE C
4. Having taken note of the persons and the properties involved in
the matter, we may now summarise the pleadings of the parties, the
issues framed by the Trial Court, and the evidence led by the parties for
appreciating the respective findings of the Trial Court and the High Court.
D
The plaint:
4.1. The plaintiff-appellants filed the suit aforesaid seeking
declaration and injunction with the averments, inter alia, that Schedule
A to D properties were owned and possessed by the testator Sri
Sangappa Shettar of Koppal; that Schedule A properties, being the parcels
E
of land, were standing in the name of the testator’s wife Mahantamma
but were purchased by him. It was averred that on 20.05.1994, the testator
Sangappa Shettar and his wife died in a car accident on the National
Highway between Hubli-Shiggoan. It was also averred that both of them
died issueless as the children born to them had died in infancy. The
plaintiffs further pointed out the relations of the parties with the testator F
and alleged that the testator was earlier joint with his family but, in or
around the year 1964, a partition took place and thereafter, he remained
separate until his demise. The plaintiffs asserted that their mother
Mahadevamma was the sister of the wife of testator; that the testator
Sri Sangappa, out of love and affection, brought up the plaintiffs by keeping
G
them in his house; that the marriage of the plaintiffs’ father (PW-1) was
performed by the testator in the year 1972; and that the deceased testator
also requested the father of the plaintiffs to assist him in the business.
The plaintiffs further averred that the deceased testator executed a Will
5
The testator owned several other properties too that were not mentioned in the Will,
and hence, are not a part of the suit properties. H
676 SUPREME COURT REPORTS [2020] 6 S.C.R.

A in the year 1974 but, being disillusioned by the behaviour of legatees, he
cancelled the same on 26.09.1990. The plaintiffs pointed out that the
deceased testator was the Chairman of Sri Gavisiddeshwara V.V. Trust,
Koppal and ardent devotee of Sri Gavisiddeshwara Swamiji of Koppal.
The plaintiffs also averred that the deceased testator changed the name
of the business from Gurukrupa Stores to Gurukrupa Traders.
B
4.1.1. The plaintiffs further averred that on 20.05.1991, the testator
Sri Sangappa Shettar executed a Will bequeathing Schedule A properties
in favour of the plaintiffs jointly; Schedule B property in favour of the
plaintiff No. 1; Schedule C property in favour of the plaintiff No. 2; and
Schedule D property in favour of the plaintiff No. 3 whereas his remaining
C properties were directed to be kept intact and plaintiffs were directed to
apply those properties for charitable purposes. The plaintiffs asserted
that the deed of the Will in question was executed by the deceased
voluntarily and in sound state of mind; and after due execution, he kept
the Will in a sealed cover and deposited the same with Sri Bhusanoormath,
D Advocate (PW-8) with directions to open the same after his death in the
presence of Swamiji. According to the plaintiffs, after the death of the
testator Sangappa, PW-8 Bhusanoormath, Advocate intimated about the
Will and the same was opened on 29.05.1994 in the presence of Swamiji.
4.1.2. The plaintiffs maintained that the relationship between the
E deceased testator and the defendants was not cordial until his death;
however, the deceased bequeathed a house to defendant no. 3 so that
she may reside therein. The plaintiffs alleged that the defendants were
well aware about the Will executed by the testator and yet created the
trust in question which was, in any case, not of any adverse effect on
the rights of the plaintiffs who had become owners of the suit properties
F
by virtue of the Will executed by the testator. With these averments, the
plaintiffs sought declaration against the trust so created by the defendants
as also on their ownership rights over the properties in question and
further for injunction against the defendants.

G The written statement by defendant No. 1 as adopted by
defendant Nos. 2-6 and 8:
4.2. The contesting defendants refuted the plaint averments and
contended, inter alia, that the suit was not maintainable under the
provisions of Section 92 of the Code of Civil Procedure, 1908 (‘CPC’);
that the trust in question was not impleaded as party; and that the
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 677
[DINESH MAHESHWARI, J.]

description of suit properties was not correct. A
4.2.1. While stating that both Sri Sangappa and his wife died in
the vehicular accident that took place at about 3:15 p.m. on 20.05.1994,
these defendants stated that their dead bodies were identified after about
18 hours; and that the defendant Nos. 1 to 3 performed their last rites.
The allegation regarding partition was denied. B
4.2.2. The contesting defendants further denied the assertions
that the plaintiffs were brought up by Sangappa and maintained that the
plaintiffs were living with their father and mother in a rented house. The
contesting defendants alleged that the relations between the deceased
and the father of the plaintiffs were strained; and that father of the C
plaintiffs was, in fact, running the business in the name of Sri
Karibasavashwar Trading Co. opposite to the place of business of the
deceased Sangappa that was running in the name of Gurukrupa Traders.
4.2.3. While questioning the Will propounded by the plaintiffs, the
contesting defendants alleged that the plaintiffs are interested in the D
properties of the deceased and had forged the Will with ulterior motives.
These defendants denied that the deceased prepared the Will and kept
the same in the sealed cover and deposited it to the Advocate with
instruction to open the same in the presence of Swamiji. The contesting
defendants recounted various suspicious circumstances concerning the
Will in question while alleging, inter alia, that the Will did not bear the E
signature of deceased Sangappa; that there was a mismatch in Hindi
Calendar date with that of English Calendar; that the past events were
stated in the Will in such a way that they would happen in future; that
various blanks were left in the description of the properties and even
otherwise, the description was incorrect; that the amount bequeathed to F
Rajeshwari and Siddabasemma was not shown; and that the description
of the properties under the Will was inconsistent, incorrect and
incomplete.
4.2.4. The contesting defendants also alleged that after the death
of Sangappa and his wife, they became the Class II heirs of the deceased G
Sangappa according to Hindu Succession Act and the trust was created
for implementation of the noble thoughts of the deceased. The contesting
defendants also alleged that the declaration of the trust on 28.05.1994
was prior to the creation of the deed of disputed Will, which was allegedly
opened on 29.05.1994. It was also alleged that the defendant No. 7
H
678 SUPREME COURT REPORTS [2020] 6 S.C.R.

A started acting against the interest of the trust and he was removed from
the trust by way of a resolution.
The written statement by defendant No. 7- supporting the
plaintiffs

B 4.3. The defendant No. 7 filed a separate written statement,
essentially admitting the claim of the plaintiffs. This defendant stated
that he was a close associate of the deceased in running Gavisiddeshwar
College; and that he was acquainted with the handwriting of the deceased.
According to this defendant, after the demise of Sri Sangappa, the
advocate met him and informed about the trust with religious and
C charitable objects to be formed out of the properties not bequeathed.
Further, one day he stopped for paying respect to Swamiji near the house
of Principal Mallikarjun Somalapur; and the advocate informed Swamiji
about the Will left by the deceased; and Swamiji instructed that the Will
be given effect to, which may give peace to the departed soul.
D 4.3.1. The defendant No. 7 further stated that the advocate handed
him over a xerox copy of the Will and he was convinced about its
genuineness after examining the same and after enquiring from the
attesting witnesses; and he also found that the draft was in the handwriting
of the deceased. This defendant also referred to the proceedings of the
meeting of the trust on 10.06.1994, where a suggestion was made that
E
the legatees under the Will should go and establish their claim in the
Court of Law but he asserted that the Will should be given effect to as,
according to him, litigating against the plaintiffs was equivalent to asserting
a false case that the deceased had not executed his Will and therefore,
he disassociated himself from the trust.
F
Issues
4.4. On the pleadings of the parties, the Trial Court framed the
following issues for determination of the questions involved in the matter:-
“1.Whether the plaintiffs prove that the deceased Sangappa
G bequeathed the suit properties in their favour under the will deed
dt: 20.05.1991?
2. Whether the defendants 1 to 5 prove that the Commission
Agency shop business was kept joint in the partition of 1954, held
during the life time of father of deceased Sangappa?
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 679
[DINESH MAHESHWARI, J.]

3. Whether the suit is not maintainable for not impleading Sri A
Sangappa Pamapnna Gadadshettar Trust, Koppal, as a party to
the suit?
4. Whether the suit is not properly valued and court fee paid is not
correct?
5. Whether the plaintiffs are entitled for the relief of declaration B
that the trust created under the name Sri Sangappa Pampanna
Gandshettar Trust, Koppal, is illegal, void and not binding on them?
6. Whether the plaintiffs 1 to 3 are entitled for the relief of
declaration that they are the joint owners of suit A schedule
properties? C

7. Whether the plaintiff No. 1 is entitled for the relief of declaration
that he is the owner of suit B schedule properties?
8. Whether the plaintiff No. 2 is entitled for the relief of declaration
that he is the owner of suit C schedule properties? D
9. Whether the plaintiff No. 3 is entitled for the relief of declaration
that she is the owner of suit D schedule properties?
10. Whether the plaintiffs are entitled for the consequential relief
of perpetual injunction against the defendants?
E
11. Whether the defendants are entitled for exemplary costs of
Rs. 30,000?
12. What decree or order?”
Evidence
4.5. In order to prove their case, the plaintiffs examined as many F
as 8 witnesses, the material among them being their father Sri Basetteppa
(PW-1); the two attesting witnesses of the Will in question Sri
Radhakrishnarao (PW-3) and Sri Ayyanagowda Hiregowdar (PW-4);
and the advocate Sri Bhusnoormath (PW-8), to whom the Will was
allegedly handed over in a sealed cover and who opened the cover in the G
presence of Swamiji. The plaintiffs also produced 17 documents including
Ex. P.2: the Will cancellation deed 26.09.1990 whereby, the testator
cancelled the earlier Will executed by him in the year 1974; Ex. P.3:
handwritten draft of the Will said to have been prepared by the testator
and kept in the sealed cover with the executed Will; and Ex. P.4: the
H
680 SUPREME COURT REPORTS [2020] 6 S.C.R.

A contested Will dated 20.05.1991. The defendants examined 2 witnesses
and produced 16 documents.
FINDINGS OF THE TRIAL COURT
5. It is but apparent that the pivotal question in this case had been
as to whether the deceased Sangappa bequeathed the suit properties in
B favour of the plaintiffs under the Will dated 20.05.1991? The Trial Court
took up issue Nos. 1 and 6 to 10 together and found that Will in question
was executed in accordance with Section 63 of the Indian Succession
Act, 19256 and the same was proved as per the requirements of Section
68 of the Indian Evidence Act, 18727; and the plaintiffs got the rights as
C claimed thereunder. The relevant aspects of the findings of the Trial
Court could be summarised as follows:
5.1. The Trial Court held that all the circumstances establishing
that PW- 8 was handed over the cover containing the Will in question
and its draft and of his opening the same before Swamiji on 29.05.1994
D cannot be suspected as he had no personal gain from the plaintiffs and
had no enmity with the defendants.
5.2. The Trial Court further held that PW-3 and PW-4 have given
the details about the Will but it was not necessary that they would
meticulously know the contents of the Will; that both have unanimously
E spoken about the deceased Sangappa having shown them the typed Will,
himself having read out the contents, and having signed before them.
The Trial Court yet further observed that neither the Will was drafted
nor it was got typed in the presence of the attesting witnesses and
everything was ready for execution and therefore, any more details
regarding typing of Will of the deceased were not expected. The Trial
F Court found that the Will in question was duly identified by the said
witnesses as Ex. P. 4 and the signatures of Sangappa were also identified
as Ex. P. 4 (a), (b) and (c); the signature of PW-3 was at Ex. P.4 (d) and
that of PW-4 at Ex. P. 4 (f). The signatures of other two witnesses were
also identified as Ex. P. 4 (e) and Ex. P. 4 (g). Thus, according to the
G Trial Court, the mode of proof as provided under Section 68 of the
Evidence Act stood duly complied with.
5.3. The Trial Court also noticed and recounted various features
which, in its opinion, lend credence to the factum of existence of the Will
6
Hereinafter referred to as ‘the Succession Act’.
7
H Hereinafter referred to as ‘the Evidence Act’.
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 681
[DINESH MAHESHWARI, J.]

in question. The Trial Court observed, inter alia, that the draft of the Will A
was prepared in the handwriting of the deceased as Ex. P.3; that PW-1
was a relative of the deceased who had been helping the deceased in
business and was acquainted with the handwriting and signature of
deceased; and thus, the handwriting and signature were identified as per
Section 47 of Evidence Act. The Trial Court also observed that the draft B
was in the cover containing the executed Will and there was no chance
to open the sealed cover; and that even if the Will did not contain all
what was written in Ex. P.3, it was not a ground to raise any suspicion.
5.4. The Trial Court further observed that the fact that the deceased
had taken help of PW-1, a distant relative, in presence of close relative C
like defendant No. 1 and his sons, was sufficient to hold that there was
no love lasting between the deceased and the defendant No. 1 and his
sons. The Trial Court observed that indisputably, the earlier Will, executed
in the year 1974, was cancelled in the year 1990 but therein too, the
defendant No. 1 and his family had not been given anything; and the
D
intention of the deceased was clear that he was not willing to give
anything to the defendant No. 1 and his family. The Trial Court also
referred to the fact that defendant Nos. 2 & 3, the sisters of the deceased,
did not come before the Court to speak against the Will in question.
5.5. As regards connectivity of the deceased with the plaintiffs,
E
the Trial Court referred to the fact that in the admission forms of the
plaintiff No. 1 pertaining to the years 1991-92 and 1993-94 for I.U.C.
classes in Gavisidddeshwar College, Koppal, the deceased had signed in
place of the guardian; and as per the address given in those applications,
he was staying in Warkar Galli C/o Sangappa Gadedshetter. Hence, the
allegations of the defendants that the plaintiffs were staying separately F
were rejected. The Trial Court observed that even if father and mother
of the plaintiffs were later on staying separately due to difference of
opinion in women-fold, the fact remained that, prior to the year 1993, the
plaintiffs and their parents were staying with the deceased as seen by
the voter lists (Exs. P.12-16) of Koppal Town pertaining to years 1975 to G
1993.
5.6. As regards the state of mind of the deceased, the Trial Court
observed that the deceased was in sound state of mind at the time of
execution of Will; and he died 3 years after making of Will and, on the
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682 SUPREME COURT REPORTS [2020] 6 S.C.R.

A day of his demise, had gone to attend the marriage 100 kms away, which
showed that he was capable of managing himself. The Trial Court also
observed that some of the discrepancies indicated by the defendants
had essentially arisen because of self-scribing of the Will and it cannot
be said that the deceased was a feeble person.
B Discrepancies/Suspicions Answered by the Trial Court:
5.7. The Trial Court also proceeded to deal with some of the
discrepancies pointed out by the defendants in the Will in question and
answered the same as follows:
5.7.1. The Trial Court observed that the discrepancy in Hindi and
C English Calendar dates as found in Ex. P.3 cannot be made a ground to
disbelieve the entire Will, particularly when the date mentioned in the
Will i.e., 20.05.1991 was falling on Monday and the same had been the
statements of PW-3 and PW-4. This discrepancy, according to the Trial
Court was of no bearing on the substance of the matter.
D
5.7.2. The Trial Court further observed that absence of property
numbers cannot be a ground to hold that the Will was a forged one; and
that the location of house property either in Warkar Galli or Katarki road
was inconsequential so far as giving effect to the Will, as the deceased
wanted to give the property with the boundaries mentioned therein.
E Similarly, the property shown as item number 2 in Schedule D was
available with municipal number and was admittedly belonging to the
deceased Sangappa. Therefore, according to the Trial Court, any
discrepancy in particulars was of no bearing; and the blanks were also
not casting any doubt or suspicion on the Will in question. The Trial Court
further observed that certain inconsistencies or certain improper directions
F may not be called as suspicious circumstances; and that though the
description of property in para 5 of the Will did not disclose the name of
the legatee to whom it was bequeathed but, that too was not a
circumstance to disbelieve the entire Will.
5.7.3. The Trial Court yet further observed that non-registration
G of Will cannot raise the presumption of forgery and fabrication. The
Trial Court also observed that the reason for keeping the Will secret was
that the legatees under the earlier Will were not respecting the feelings
of the deceased and hence, the deceased kept everybody guessing about
the contents of his last Will.
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 683
[DINESH MAHESHWARI, J.]

5.7.4. As regards the suspicious circumstance asserted by the A
defendants that deceased had not left anything for his wife in the Will
executed in the year 1991, the Trial Court observed that when, apart
from the properties shown in the Will, the deceased was leaving other
properties too, definitely those properties would have gone to his wife
and hence, not making the provision for wife in the Will was not a ground
B
that could be raised as suspicion. The Trial Court also observed that in
para 3 of the Will, 4 acres of the land of Irkalgada was given to Gopur
Basaveshwara Temple, which clearly showed that the deceased had
given properties to charitable purposes also.
5.7.5. As regards entering of the names of the legatees in the Will
by the deceased by filing an application to municipality on 04.09.1993 C
during his life time, the Trial Court observed that such entries were of no
legal effect and do not operate against the Will in question.
5.7.6. As regards the question raised by the defendants that even
the past events were stated in the Will as if to happen in future, the Trial
Court observed that in para 4 of the Will, the deceased had stated that D
Sangappa Uttangi had promised to vacate the shop and godown in the
year 1990 and though the wording should have been different when the
Will was written in the month of May 1991, but such a fact was irrelevant
because Uttangi was a tenant and even if he had continued, that would
not have affected the rights of legatees under the Will. E
5.8. In relation to the suspicious features pertaining to the
documents in question i.e., the draft of the Will Ex. P.3 and the deed of
Will Ex. P.4, the Trial Court observed that only the strong suspicious
circumstances were required to be explained by the propounder of the
Will; and proceeded to dismiss the suspicions suggested by the defendants, F
with the observations and findings, inter alia, as follows :
5.8.1. The Trial Court observed that the loose sheets were removed
from the exercise note book and used by the deceased to write the draft
but, there was no evidence to show that the entire draft was made on
one day; and the deceased might have written some pages on some day G
and some pages on some other day. After noticing that chronological
numbers were not available on such loose sheets, the Trial Court observed
that the draft could be used to read the intention and to interpret the Will
Ex. P.4 but, it cannot be used to nullify the intention of the deceased. In
this sequence, the Trial Court also observed that the persons challenging
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684 SUPREME COURT REPORTS [2020] 6 S.C.R.

A the Will were not expected to get any property through succession
because, in the event of the demise of Sangappa alone, the properties
would have gone to his wife.
5.8.2. As regards non-examination of the typist, the Trial Court
observed that it was not at all a suspicious circumstance because the
B Will was a secret document and nobody, including the propounders, knew
as to where the Will was typed.
5.8.3. Though the very opening recital in the Will in question
mentioned about the likelihood of an accident but in this regard, the Trial
Court observed that none except deceased himself could give explanation
C as to what was the intuition for him to write in the Will about accident
and death in the accident.
5.8.4. As regards the document itself (Ex. P.4), the Trial Court
noticed that page numbers 1, 2 and 5 of the Will were green coloured,
whereas the colour of page numbers 3 and 4 was not the same but
D observed that different coloured sheets might have been used by the
typist.
5.8.5. The Trial Court, of course, noted the features that the
signature of the testator on page number 1 of the document in question
(Ex. P.4) was made with an ink pen whereas ballpoint pen was used on
E the next page but, observed in this regard that one of the witnesses had
spoken that the ink pen did not write properly so the ballpoint pen was
used. The Trial Court further observed that so far putting the signatures
before the witnesses was concerned, there was no doubt that Ex. P. 4
(a) (b) & (c) were the signatures of the deceased, as proved in the
testimonies of the attesting witnesses. The Trial Court yet further observed
F that the Will was kept by the deceased in sealed cover and this was a
strong circumstance to show that the execution of Will by the deceased
cannot be suspected.
5.9. In its conclusion, the Trial Court held that from every angle,
the Will in question was natural; and the plaintiffs had discharged their
G burden of proving the same and also dispelled the suspicious
circumstances stated by the defendants. The Trial Court, accordingly,
held that overall reading of the Will indicated that the deceased had
written the same with an intention of bequeathing the properties to the
legatees. Issue Nos. 1 and 6 to 10 were, therefore, decided in favour of
H the plaintiffs.
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 685
[DINESH MAHESHWARI, J.]

5.10. The Trial Court also returned the findings on other issues in A
favour of the plaintiffs and, accordingly, decreed the suit with declaration
and injunction as noticed hereinbefore.
REVERSAL BY THE HIGH COURT
6. In appeal by the contesting respondents against the judgment
and decree so passed by the Trial Court, the High Court took note of the B
material on record as also the rival contentions and framed two points
for determination as follows:
“i) Whether the plaintiffs proved that the deceased Sangappa
bequeathed his properties in their favour under the will dated
20.5.1991? C

ii) Whether the trial Court was justified in holding the will dated
20.5.1991 executed by Sangappa as genuine or not?”
6.1. In relation to both the points aforesaid, which essentially
revolved around the question of genuineness of the Will in question, the D
High Court took note of the principles exposited by this Court in the
cases of Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose
and Anr.: (1982) 1 SCC 20 and Smt. Jaswant Kaur v. Smt. Amrit
Kaur and Ors.: (1977) 1 SCC 369 and thereafter, proceeded to
examine the basic contentions of the defendants that by its very nature,
the Will appeared to be a fabricated document. After taking note of the E
discrepancies in the document itself and other unnatural circumstances
as also after analysing the evidence of the star witnesses PW-4 and
PW-8, the High Court found that the Trial Court had erred in deciding
the relevant issue in favour of the plaintiffs and, while reversing the
findings of the Trial Court, held that the contested Will was not a genuine F
one. As the consequence, the judgment and decree passed by the Trial
Court were set aside. Of course, as regards the question of possession,
the High Court left it open for the contesting defendants to take recourse
to appropriate remedies in accordance with law.
6.2. As regards discrepancies in the document in question, about
G
the difference of the colour of the three sheets used and in the alleged
signatures of the testator, the High Court meticulously examined the
document and recorded its observations and findings as follows:
“24. Keeping the observations of the Hon’ble Supreme Court in
view, the WILL would have to be looked into since it has been
H
686 SUPREME COURT REPORTS [2020] 6 S.C.R.

A strenuously contended by the learned senior counsel for the
appellant that the very sight of the WILL would indicate that the
same has been fabricated. The original of the WILL dated
20.5.1991 is marked as Ex.P4 which is available in the records
secured from the Court below. The same is typed in Kannada
script on three sheets which are normally used for typing papers
B
which are submitted to Court. The colour of the three sheets are
not similar. The first sheet is light green, the second sheet
is very light in colour (almost white) and the third sheet is
darker among the three. At the outset, it is clear that all
the three sheets are not from the same stock and if the
C same was got typed from a typist in a normal course as
claimed, the sheets could not have been different from one
another. The alleged signature of the testator is found at the bottom
of each page on the facing side only. Though there is typed
matter on the reverse side at pages 2 and 4 the same does
not contain signatures. Even the signatures found on the
D
facing sheet are not uniformly affixed. On first page the
signature is more than one inch below the last line of the typed
matter and has the appearance of a prefixed signature. The second
sheet (page-3) contains signature near to the typed matter. The
last sheet (page 5) has the signature which is at a distance of
E about an inch below the last line of the typed matter. The name of
the alleged testator typed below the signature has all indications
of the same being typed below an existing signature. This is evident
from the fact that the name would not have been typed so low
from the typed matter, particularly when the place ‘Koppal’ and
date typed on the left side of the sheet is at a lesser distance from
F
the typed matter and are not in alignment with each other. The
space provided for signature of four witnesses seems very
unnatural and even in that circumstance the name of the alleged
testator would not have been typed so low if it was a natural
typing on a blank sheet. The first page and last page have
G been signed using fountain ink pen but the pen used is not
similar to one another. The second sheet is signed by a
ballpoint pen. The pattern of signatures if compared with the
earlier admitted WILL dated 29.6.1990 which was registered but
later revoked, which is marked as Ex.P1 would indicate uniform
pattern immediately below the written matter without any gap
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 687
[DINESH MAHESHWARI, J.]

and even a small correction has been attested, whereas in the A
propounded WILL, blanks have been left. It does not require a
detective like Sherlock Holmes to notice these
discrepancies which are visible to naked eye and the very
sight of the WILL does not inspire confidence that it could
be genuine.”
B
(emphasis supplied)
6.3. The unusual feature of the use of different instruments while
making three signatures on the same document came up for its fuller
exposition when the High Court proceeded to examine the explanation
sought to be furnished by PW–4. While rejecting the testimony of this C
witness PW-4, the High Court observed and found, inter alia, as under:–
“27. In this background, the discrepancies in the signatures and
the different pens which were used also assumes importance. In
this regard P.W.-4, Sri Ayyanagowda Hiregowdar who claims to
be one of the attesting witness of the WILL in his cross examination D
admitted that Ex.P4(a) is the signature with ink pen, except
Ex.P4(c) being the signature with ball pen and again signature
Ex.P4(b) is by ink pen and he has also stated that the signatures
in Ex.P4(a) and (b) have been made by the very same pen. He
has further stated that both the pens were available with the
testator. He has sought to explain the same by stating that while E
signing the third page the ink pen was not working, this explanation
is palpably false and cannot be believed for the reason that the
first page has been signed by fountain ink pen and the third page
again has been signed by the fountain ink pen whereas the second
page has been signed by a ballpoint pen. Hence this would not F
only indicate the incorrect statement but would certainly indicate
the unnatural circumstances that a person would be so careless
while signing a document in the nature of a WILL which is fully
known to him that it is a document regarding which he would not
be available to explain the situation. One other reason for which
the said explanation cannot be believed is that if the fountain ink G
pen used by the testator was really not working after affixing
the signature on the first page, it cannot be understood as
to how he could have signed the second sheet with the
ballpoint pen and thereafter once again sign the third sheet
with the fountain ink pen more so, when the ink pen used H
688 SUPREME COURT REPORTS [2020] 6 S.C.R.

A in the first sheet and the third sheet are not similar to one
another. That apart the signatures of the so called attesting
witnesses to the WILL would indicate that the same have been
made with fountain ink pen and the said ink of these signatures
are much fresher than the signatures of the alleged testator…..”
B (emphasis supplied)
6.4. The High Court also rejected the contentions of the plaintiffs
that the alleged discrepancies could not take away the validity of the
Will as it was produced by PW-8 and the sealed envelope was opened in
the presence of Swamiji. The High Court pointed out that the very
C assertion, about availability of the handwritten draft of the proposed Will
EX. P.3 in the sealed envelope along with the alleged executed Will EX.
P.4, was that of another unnatural feature because if the testator had
himself completed and executed the Will in the presence of witnesses,
there was no reason to place the incomplete handwritten draft in the
envelope. The High Court proceeded to observe that such feature gave
D strong indication that the plaintiffs had been able to place their hands on
an incomplete draft and have fabricated the Will using blank sheets signed
by the testator at different times; and only to make it appear authentic,
the story of the envelope containing the draft was weaved. While rejecting
the story about the availability of the sealed envelope with the advocate
E PW-8 and its opening before Swamiji, the High Court also pointed out
that the advocate concerned, PW-8, was known to the testator as also
to the father of the plaintiffs PW-1 inasmuch as he had indeed appeared
in his professional capacity on behalf of PW-1. Moreover, and as noticed,
in regard to the assertion of the plaintiffs and the witnesses that the
cover containing the Will was opened before Swamiji, the High Court
F observed that the said Swamiji was a very important and material witness
in this case but the plaintiffs never took any steps to get his statement
recorded.
6.5. After taking note of the aforesaid inexplicable features,
unnatural circumstances, unreliability of the witnesses of the plaintiffs
G and the fact that no steps were taken by the plaintiffs to get recorded
the statements of a material witness, namely the said Swamiji, the High
Court also took note of the approach of the Trial Court and did not
approve the same while observing, inter alia, as under:

H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 689
[DINESH MAHESHWARI, J.]

“28. The said discrepancies though noticed have been sought to A
be explained by the learned Judge of the Court below in a manner
as though to overcome the same wherein the learned Judge states
that the difference in the colour of the papers cannot be suspected
because it could have been used by the typist. The learned Judge
further holds that it cannot be suspected since the said papers
B
contain the signatures and the signatures have been identified by
the witnesses. As noticed by us above, the very signatures itself
are doubtful that it has been affixed after the matter was typed
and the explanation given by the witnesses are even more doubtful
and as such the learned Judge could not have lightly brushed aside
these aspects.” C
6.6. In view of the above, the High Court allowed the appeal and
set aside the judgment and decree of the Trial Court. Hence, the
unsuccessful plaintiffs have preferred this appeal.
RIVAL CONTENTIONS
D
7. Assailing the judgement of the High Court, learned senior counsel
for the plaintiff–appellants has strenuously argued that the High Court
has seriously erred in setting aside the findings of the Trial Court, which
were based on due appreciation of the consistent evidence of the material
witnesses. The learned counsel has contended that the facts are amply
established on record that on 20.05.1991, the testator executed the Will E
in question in accordance with the provisions of Section 63 of the
Succession Act and Section 68 of the Evidence Act with his signatures
and with attestation by more than two witnesses who had seen the testator
signing the Will. According to the learned counsel, the testator was in
sound and disposing state of mind while voluntarily executing the Will, as F
required by Section 59 of Indian Succession Act. PW-3 and PW-4
deposed before the Trial Court that the testator himself showed the typed
Will and put his signatures on the same; and the Will was duly attested
by PW-3 and PW-4. Hence, the requirements of Section 68 of the
Evidence Act are fulfilled. The learned counsel has referred to the decision
in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and G
Ors: AIR 1959 SC 443 and has contended that with all the legal
requirements being fulfilled and there being no reason to ignore or
disbelieve the Will, the Trial Court had rightly decreed the suit and the
High Court has not been justified in upsetting the considered decision of
the Trial Court. H
690 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 7.1. The learned senior counsel has contended that the appellants
have dispelled all suspicious circumstances qua the Will in question; that
as per Section 74 of the Succession Act, it is not necessary that technical
words be used in the Will; and what is necessary is only that the intention
of the testator ought to be set out in the Will. According to the learned
counsel, Ex. P3, the handwritten draft, makes the intention of the testator
B
clear that he wanted to bequeath his properties to the appellants. Further,
PW-5 and defendant No. 7 have clearly identified the signature of the
testator. The learned counsel would urge that with the intention of the
testator having been amply established on record, some blanks in the
Will or some other minor inconsistencies cannot take away the substance
C thereof, particularly when the properties could be identified with the
help of the boundaries. The learned counsel has referred to the decisions
in Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and
Anr.: (1982) 1 SCC 20 and P.P.K. Gopalan Nambiar v. P.P.K.
Balakrishnan Nambiar and Ors: 1995 Supp (2) SCC 664. The
learned counsel has further contended that exclusion of any legal heir
D
from the Will is not a suspicious circumstance and has referred to the
decision in Uma Devi Nambiar and Ors. v. T.C. Sidhan: (2004) 2
SCC 321.
7.2. The learned senior counsel has further strenuously argued
that it had not been the contention of the respondents that the document
E in question was drawn on blank signed papers and the observation of the
High Court that the document in question was drawn on blank signed
papers does not find support in the evidence and pleadings on record. In
this regard, the learned counsel has relied upon the decision in Mahesh
Kumar (dead) by LRs v. Vinod Kumar and Ors: (2012) 4 SCC 387.
F 7.3. In the last and in the alternative, the learned senior counsel
has argued that if at all the High Court found the want of requisite evidence,
the proper course was to exercise the power of remand under the
provisions of Order XLI Rule 23-A CPC. The learned counsel has
contended that the High Court being the first Court of Appeal, ought to
G have given the opportunity to the appellants to adduce proper additional
evidence, considering the fact that the findings were being made on
suspicious circumstances other than those raised by the defendants in
their pleadings and evidence. The learned counsel has referred to and
relied upon the decision in the case of Mohan Kumar v. State of Madhya
Pradesh and Ors.: (2017) 4 SCC 92.
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 691
[DINESH MAHESHWARI, J.]

8. Per contra, learned counsel for the contesting respondents has A
duly supported the judgement of the High Court with reference to the
reasonings and observations therein. The learned counsel has also argued
that right from the beginning, it had been the case of the respondents
that the propounded Will was nothing but a fabricated document and it is
incorrect to say that particular objection had not been taken by the
B
respondents. The learned counsel has referred to the decision in
K. Laxmanan v. Thekkayil Padmini and Ors.: (2009) 1 SCC 354.
POINTS FOR DETERMINATION
9. In view of the submissions made, the following points essentially
arise for determination in this case: C
1. As to whether the High Court was right in reversing the decision
of the Trial Court and in holding that the contested Will was not a genuine
document?
2. As to whether the High Court ought to have considered
remanding the case to the Trial Court? D

WILL – PROOF AND SATISFACTION OF THE COURT
10. As noticed, the basic point for determination in this case is as
to whether the High Court was justified in taking a view contrary than
that of the Trial Court and in holding that the Will propounded by the E
plaintiffs is not the genuine Will of the deceased Sangappa. Determination
of this point, obviously, revolves around the legal principles applicable to
the making of a testamentary document like Will, its proof, and its
acceptance by the Court.
10.1. The Will being a rather solemn document that comes into F
operation after the death of the testator, special provisions are made in
the statutes for making of a Will and for its proof in a Court of law.
Section 59 of the Succession Act provides that every person of sound
mind, not being a minor, may dispose of his property by Will. A Will or
any portion of a Will, the making of which has been caused by fraud or
coercion or by any such importunity that has taken away the free agency G
of the testator, is declared to be void under Section 61 of the Succession
Act; and further, Section 62 of the Succession Act enables the maker of
a Will to make or alter the same at any time when he is competent to
dispose of his property by Will. Chapter III of Part IV of the Succession
Act contains the provisions for execution of unprivileged Wills (as H
692 SUPREME COURT REPORTS [2020] 6 S.C.R.

A distinguished from privileged Wills provided for in Chapter IV). Section
63 of the Succession Act, relevant for the present purpose, reads as
under: –
“63. Execution of unprivileged Wills.-Every testator, not
being a soldier employed in an expedition or engaged in actual
B warfare, or an airman so employed or engaged, or a mariner at
sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his
direction.
C
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that
it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witness, each of
whom has seen the testator sign or affix his mark to the Will or
D
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or the signature
of such other person; and each of the witnesses shall sign the Will
in the presence of the testator, but it shall not be necessary that
E more than one witness be present at the same time, and no
particular form of attestation shall be necessary.”
10.2. Elaborate provisions have been made in Chapter VI of the
Succession Act, in Sections 74 to 111, for construction of Wills which, in
their sum and substance, make the intention of legislature clear that any
F irrelevant misdescription or error is not to operate against the Will; and
approach has to be to give effect to a Will once it is found to have been
executed in the sound state of mind by the testator while exercising his
own free will. However, when the Will is surrounded by suspicious
circumstances, the Court would expect that the legitimate suspicion
G should be removed before the document in question is accepted as the
last Will of the testator.
10.3. As noticed, as per Section 63 of the Succession Act, inter
alia, requires that the Will ought to be attested by two or more witnesses.
Hence, any document propounded as a Will cannot be used as evidence
H unless at least one attesting witness has been examined for the purpose
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 693
[DINESH MAHESHWARI, J.]

of proving its execution, if such witness is available and is capable of A
giving evidence as per the requirements of Section 68 of the Evidence
Act, that reads as under: –
“68. Proof of execution of document required by law to be
attested.-If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has B
been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the Court
and capable of giving evidence:
Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being a C
Will, which has been registered in accordance with the provisions
of the Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have been executed
is specifically denied.”
10.4. Learned Counsel for the appellant has referred to the decision D
in the case of H. Venkatachala Iyenger (supra). It is noticed that in
paragraphs 18 to 22 of the said decision, this Court has synthesised and
condensed almost the entire panorama relating with execution and proof
of a Will and the guiding principles for a Court while examining the
document which is propounded as a Will. These passages in the said 3-
Judge Bench decision of this Court could be usefully reproduced as E
under: –
“18. What is the true legal position in the matter of proof of wills?
It is well-known that the proof of wills presents a recurring topic
for decision in courts and there are a large number of judicial
pronouncements on the subject. The party propounding a will or F
otherwise making a claim under a will is no doubt seeking to prove
a document and, in deciding how it is to be proved, we must
inevitably refer to the statutory provisions which govern the proof
of documents. Sections 67 and 68 of the Evidence Act are relevant
for this purpose. Under Section 67, if a document is alleged to be G
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 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
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A 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. 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
B
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 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
C 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 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
D
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 understand the
nature and effect of the dispositions in the will? Did he put
his signature to the will knowing what it contained? Stated
E 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 attestation prescribed by Section 63 of the Indian
Succession Act. As in the case of proof of other documents so in
F
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.
19. However, there is one important feature which distinguishes
wills from other documents. Unlike other documents the will
G speaks from the death of the testator, and so, when it is propounded
or produced before a court, the testator who has already departed
the world cannot say whether it is his will or not; and this aspect
naturally introduces an element of solemnity in the decision of the
question as to whether the document propounded is proved to be
H the last will and testament of the departed testator. Even so, in
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 695
[DINESH MAHESHWARI, J.]

dealing with the proof of wills the court will start on the same A
enquiry as in the case of the proof of documents. The propounder
would be called upon to show by satisfactory evidence that the
will was signed by the testator, that the testator at the relevant
time was in a sound and disposing state of mind, that he understood
the nature and effect of the dispositions and put his signature to
B
the document of his own free will. Ordinarily 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 the propounder. In other words,
the onus on the propounder can be taken to be discharged C
on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of
the will may be surrounded by suspicious circumstances.
The alleged signature of the testator may be very shaky and
doubtful and evidence in support of the propounder’s case that D
the signature in question is the signature of the testator may not
remove the doubt created by the appearance of the signature; the
condition of the testator’s mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed in removing
the legitimate doubt as to the mental capacity of the testator; the
E
dispositions made in the will may appear to be unnatural, improbable
or unfair in the light of relevant circumstances; or, the will may
otherwise indicate that the said dispositions may not be the result
of the testator’s free will and mind. In such cases the court would
naturally expect that all legitimate suspicions should be
completely removed before the document is accepted as F
the last will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus very
heavy; and, unless it is satisfactorily discharged, courts
would be reluctant to treat the document as the last will of
the testator. It is true that, if a caveat is filed alleging the exercise G
of undue influence, fraud or coercion in respect of the execution
of the will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may raise
a doubt as to whether the testator was acting of his own free will
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A in executing the will, and in such circumstances, it would be a part
of the initial onus to remove any such legitimate doubts in the
matter.
21. Apart from the suspicious circumstances to which we have
just referred, in some cases the wills propounded disclose another
B infirmity. Propounders themselves take a prominent part in the
execution of the wills which confer on them substantial benefits.
If it is shown that the propounder has taken a prominent part in
the execution of the will and has received substantial benefit under
it, that itself is generally treated as a suspicious circumstance
C attending the execution of the will and the propounder is required
to remove the said suspicion by clear and satisfactory evidence.
It is in connection with wills that present such suspicious
circumstances that decisions of English courts often mention the
test of the satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a heritage
D from similar observations made by ecclesiastical courts in England
when they exercised jurisdiction with reference to wills; but any
objection to the use of the word “conscience” in this context would,
in our opinion, be purely technical and academic, if not pedantic.
The test merely emphasizes that, in determining the question as to
E whether an instrument produced before the court is the last will
of the testator, the court is deciding a solemn question and it must
be fully satisfied that it had been validly executed by the testator
who is no longer alive.
22. It is obvious that for deciding material questions of fact which
arise in applications for probate or in actions on wills, no hard and
F
fast or inflexible rules can be laid down for the appreciation of the
evidence. It may, however, be stated generally that a
propounder of the will has to prove the due and valid
execution of the will and that if there are any suspicious
circumstances surrounding the execution of the will the
G propounder must remove the said suspicions from the mind
of the court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of these two
general and broad principles would always depend upon the facts
and circumstances of each case and on the nature and quality of
the evidence adduced by the parties. It is quite true that, as
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 697
[DINESH MAHESHWARI, J.]

observed by Lord Du Parcq in Harmes v. Hinkson:(1946) 50 A
C.W.N. 895, “where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate persistence in
disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to the truth”. It B
would sound platitudinous to say so, but it is nevertheless true that
in discovering truth even in such cases the judicial mind must
always be open though vigilant, cautious and circumspect.”
(emphasis supplied)
C
10.5. Learned Counsel for the appellant has referred to paragraphs
7 and 8 of the decision of this Court in the case of Indu Bala Bose
(supra) which may also be taken note of as under: –
“7. This Court has held that the mode of proving a Will does not
ordinarily differ from that of proving any other document except
to the special requirement of attestation prescribed in the case of D
a Will by Section 63 of the Succession Act. The onus of proving
the Will is on the propounder and in the absence of suspicious
circumstances surrounding the execution of the will, proof of
testamentary capacity and the signature of the testator as required
by law is sufficient to discharge the onus. Where however there E
are suspicious circumstances, the onus is on the propounder
to explain them to the satisfaction of the court before the
court accepts the Will as genuine. Even where circumstances
give rise to doubts, it is for the propounder to satisfy the conscience
of the court. The suspicious circumstances may be as to the
genuineness of the signatures of the testator, the condition of the F
testator’s mind, the dispositions made in the Will being unnatural,
improbable or unfair in the light of relevant circumstances, or there
might be other indications in the Will to show that the testator’s
mind was not free. In such a case the court would naturally expect
that all legitimate suspicions should be completely removed before G
the document is accepted as the last Will of the testator. If the
propounder himself takes a prominent part in the execution of the
will which confers a substantial benefit on him, that is also a
circumstance to be taken into account, and the propounder is
required to remove the doubts by clear and satisfactory evidence.
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A If the propounder succeeds in removing the suspicious
circumstances the court would grant probate, even if the will might
be unnatural and might cut off wholly or in part near relations.:
AIR 1964 SC 529
8. Needless to say that any and every circumstance is not a
B “suspicious” circumstance. A circumstance would be
“suspicious” when it is not normal or is not normally
expected in a normal situation or is not expected of a normal
person.”
(emphasis supplied)
C 10.6. In the case of P.P.K. Gopalan Nambiar (supra), the Will in
question was a registered one and the endorsement made by the Registrar
showed that the testator was in a sound disposing state of mind and the
Will was executed out of the testator’s free will. It was also found that
the testator died 8 years after registration of the Will and though legatee
D propounded the Will in his written statement, but no plea was taken by
the opposite party to question the validity of the Will. The Will was duly
proved with examination of the attesting witness. In the given
circumstances, the fact that whole of the estate was given to one son
under the Will while depriving two daughters, was not considered to be
a suspicious circumstance. On the requisite approach, this Court said as
E under:-
“5. Under these circumstances, the suspicion which excited the
mind of the District Munsif is without any basis and he picked
them from his hat without fact-foundation. The Subordinate Judge
had rightly considered all the circumstances and upheld the will.
F The High Court, without examining the evidence, by merely
extracting legal position set out by various decisions of this Court
has upset the finding of the fact recorded by the Subordinate Judge
in one sentence. It is trite that it is the duty of the propounder of
the will to prove the will and to remove all the suspected features.
G But there must be real, germane and valid suspicious
features and not fantasy of the doubting mind.”
(emphasis supplied)
10.7. In the case of Uma Devi Nambiar (supra), this Court
reviewed the case law dealing with the Will to a large extent and, while
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 699
[DINESH MAHESHWARI, J.]

referring to the Constitution Bench decision of this Court in the case of A
Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and
Ors.: AIR 1964 SC 529, observed that merely because the natural
heirs have either been excluded or lesser share had been given to them,
by itself, will not be considered to be a suspicious circumstance. This
Court observed, inter alia, as under:-
B
“15. Section 63 of the Act deals with execution of unprivileged
Wills. It lays down that the testator shall sign or shall affix his
mark to the Will or it shall be signed by some other person in his
presence and by his direction. It further lays down that the Will
shall be attested by two or more witnesses, each of whom has
seen the testator signing or affixing his mark to the Will or has C
seen some other person sign the Will, in the presence and by the
direction of the testator and each of the witnesses shall sign the
Will in the presence of the testator. Section 68 of the Indian
Evidence Act, 1872 (in short the “Evidence Act”) mandates
examination of one attesting witness in proof of a Will, whether D
registered or not. The law relating to the manner and onus of
proof and also the duty cast upon the court while dealing with a
case based upon a Will has been examined in considerable detail
in several decisions of this Court…….A Constitution Bench of
this Court in Shashi Kumar Banerjee’s case succinctly indicated
the focal position in law as follows: (AIR p. 531, para 4) E

“The mode of proving a Will does not ordinarily differ from
that of proving any other document except as to the special
requirement of attestation prescribed in the case of a Will by
Section 63 of the Indian Succession Act. The onus of proving
the Will is on the propounder and in the absence of suspicious F
circumstances surrounding the execution of the Will, proof of
testamentary capacity and the signature of the testator as
required by law is sufficient to discharge the onus. Where
however there are suspicious circumstances, the onus is on
the propounder to explain them to the satisfaction of the court G
before the court accepts the Will as genuine. Where the
caveator alleges undue influence, fraud and coercion, the onus
is on him to prove the same. Even where there are no such
pleas but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court. The suspicious
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A circumstances may be as to the genuineness of the signature
of the testator, the condition of the testator’s mind, the
dispositions made in the Will being unnatural, improbable or
unfair in the light of relevant circumstances or there might be
other indications in the Will to show that the testator’s mind
was not free. In such a case the court would naturally expect
B
that all legitimate suspicion should be completely removed before
the document is accepted as the last Will of the testator. If the
propounder himself takes part in the execution of the Will which
confers a substantial benefit on him, that is also a circumstance
to be taken into account, and the propounder is required to
C remove the doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious circumstances
the court would grant probate, even if the Will might be unnatural
and might cut off wholly or in part near relations.”
16. A Will is executed to alter the ordinary mode of succession
D and by the very nature of things it is bound to result in earlier
reducing or depriving the share of natural heirs. If a person
intends his property to pass to his natural heirs, there is no
necessity at all of executing a Will. It is true that a propounder
of the Will has to remove all suspicious circumstances. Suspicion
means doubt, conjecture or mistrust. But the fact that natural
E heirs have either been excluded or a lesser share has been
given to them, by itself without anything more, cannot be held
to be a suspicious circumstance specially in a case where the
bequest has been made in favour of an offspring. As held in
P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and
F Ors.: [1995] 2 SCR 585, it is the duty of the propunder of the
Will to remove all the suspected features, but there must be
real, germane and valid suspicious features and not fantasy of
the doubting mind. It has been held that if the propounder
succeeds in removing the suspicious circumstances, the court
has to give effect to the Will, even if the Will might be unnatural
G in the sense that it has cut off wholly or in part near relations.
…… In Rabindra Nath Mukherjee and Anr. v. Panchanan
Banerjee (dead) by LRs. and Ors.: AIR 1995 SC 1684, it was
observed that the circumstance of deprivation of natural heirs
should not raise any suspicion because the whole idea behind
H execution of the Will is to interfere with the normal line of
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 701
[DINESH MAHESHWARI, J.]

succession and so, natural heirs would be debarred in every A
case of Will. Of course, it may be that in some cases they are
fully debarred and in some cases partly.”
10.8. In the case of Mahesh Kumar (supra), this Court indicated
the error of approach on the part of High Court while appreciating
evidence relating to the Will in the following:- B
“44. The issue which remains to be examined is whether the High
Court was justified in coming to the conclusion that the execution
of the will dated 10-2-1992 was shrouded with suspicion and the
appellant failed to dispel the suspicion? At the outset, we deem it
necessary to observe that the learned Single Judge misread the C
statement of Sobhag Chand (DW3) and recorded something which
does not appear in his statement. While Sobhag Chand categorically
stated that he had signed as the witness after Shri Harishankar
had signed the will, the portion of his statement extracted in the
impugned judgment gives an impression that the witnesses had
signed even before the executant had signed the will. D

45. Another patent error committed by the learned Single Judge is
that he decided the issue relating to validity of the will by assuming
that both the attesting witnesses were required to append their
signatures simultaneously. Section 63(c) of the 1925 Act does not
contain any such requirement and it is settled law that examination E
of one of the attesting witnesses is sufficient. Not only this, while
recording an adverse finding on this issue, the learned Single Judge
omitted to consider the categorical statements made by DW 3
and DW 4 that the testator had read out and signed the will in
their presence and thereafter they had appended their signatures. F
46. The other reasons enumerated by the learned Single Judge
for holding that the execution of will was highly suspicious are
based on mere surmises/conjectures. The observation of the
learned Single Judge that the possibility of obtaining signatures of
Shri Harishankar and attesting witnesses on blank paper and G
preparation of the draft by Shri S.K. Agarwal, Advocate on pre-
signed papers does not find even a semblance of support from the
pleadings and evidence of the parties. If Respondent 1 wanted to
show that the will was drafted by the advocate after Shri
Harishankar and attesting witnesses had signed blank papers, he
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A could have examined or at least summoned Shri S.K. Agarwal,
Advocate, who had represented him before the Board of Revenue.
....”
10.9. In the case of K. Laxmanan (supra), this Court, with
reference to the settled principles including those in the case of Shashi
B Kumar Banerjee (supra) re-emphasised on the requirement that the
propounder has to prove the legality of execution of the Will as also the
genuineness thereof by proving the testamentary capacity of the testator
as also his signatures and further by proving absence of suspicious
circumstances. This Court, inter alia, said,-
C “18……The propounder has to prove the legality of the execution
and genuineness of the said will by proving absence of suspicious
circumstances surrounding the said will and also by proving the
testamentary capacity and the signature of the testator. Once the
same is proved, it could be said that the propounder has discharged
the onus.
D
19. When there are suspicious circumstances regarding the
execution of the will, the onus is also on the propounder to explain
them to the satisfaction of the court and only when such
responsibility is discharged, the court would accept the will as
genuine. Even where there are no such pleas, but circumstances
E give rise to doubt, it is on the propounder to satisfy the conscience
of the court. Suspicious circumstances arise due to several reasons
such as with regard to genuineness of the signature of the testator,
the conditions of the testator’s mind, the dispositions made in the
will being unnatural, improbable or unfair in the light of relevant
F circumstances or there might be other indications in the will to
show that the testator’s mind was not free. In such a case, the
court would naturally expect that all legitimate suspicion should
be completely removed before the document is accepted as the
last will of the testator…..”

G 10.9.1. In K. Laxmanan (supra), this Court also explained the
principles governing the pleadings in such matters while observing, inter
alia, as under:–
“28. It is however established in the present case that the issue of
validity of the execution of both the deed of gift and deed of will
was taken up by the respondent-plaintiff and specifically denied
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 703
[DINESH MAHESHWARI, J.]

in the affidavits filed in respect of the injunction applications. The A
parties have also gone to trial knowing fully well that
execution of both these documents is under challenge.
Parties knowing fully the aforesaid factual position led their
evidence also to establish the legality and validity of both
the documents. In that view of the matter, it cannot be said
B
that the said document should be deemed to be admitted
by the plaintiff as no replication was filed by the plaintiff.”
(emphasis supplied)
10.10. We may also usefully refer to the principles enunciated in
the case of Jaswant Kaur (supra) for dealing with a Will shrouded in C
suspicion, which were duly taken note of by the High Court in its impugned
judgement, as follows: –
“9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an adversary D
proceeding becomes in such cases a matter of the court’s
conscience and then the true question which arises for
consideration is whether the evidence led by the propounder
of the will is such as to satisfy the conscience of the court
that the will was duly executed by the testator. It is impossible
to reach such satisfaction unless the party which sets up the will E
offers a cogent and convincing explanation of the suspicious
circumstances surrounding the making of the will.”
(emphasis supplied)
11. For what has been noticed hereinabove, the relevant principles F
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
G
documents, in the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
2. 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
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704 SUPREME COURT REPORTS [2020] 6 S.C.R.

A execution, if there be an attesting witness alive and capable of
giving evidence.
3. 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.
B 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 Will.
C 4. 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,
D the propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
5. 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
E 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 matter.
F
6. 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 mind.’
G
7. 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
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 705
[DINESH MAHESHWARI, J.]

active or leading part in making of the Will by the beneficiary A
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
B
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 attestation.
8. The test of satisfaction of the judicial conscience comes into C
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 D
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 E
surrounding the Will.
SUSPICIOUS CIRCUMSTANCES/FEATURES CONCERNING
THE WILL IN QUESTION
12. Having considered the present matter in its totality while keeping
the principles aforesaid in view, we have not an iota of doubt that the F
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 same.
13. In summation of the lengthy discussion of the Trial Court, it G
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 H
706 SUPREME COURT REPORTS [2020] 6 S.C.R.

A year 1974, Sangappa had not bequeathed any property to the contesting
defendants; (iii) that the plaintiffs, the grand–nephews of testator’s 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
B 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 Will.
C 13.1 As regards the discrepancies indicated by the defendants,
the Trial Court took the view that mere misdescription of the property
was of no effect, particularly when its identification was not in doubt;
and for this very reason, the Trial Court found the blank spaces as regards
the particulars of the property to be of no effect. As regards mentioning
D of a past event as something to happen in future, the Trial Court found
that it had no adverse bearing on the validity of the Will because existence
of a tenant in the property was not going to affect the rights of the
testator as also his legatees. As regards the statement in the Will about
likelihood of accident, the Trial Court observed that the reason for making
such a recital was known to the testator alone. On the suspicious factors
E concerning the document itself, the Trial Court observed that use of the
sheets of paper of different colours could be attributed only to the typist
who was not known to propounders. The Trial Court further found that
the inconsistency regarding the dates from the Hindi Calendar and English
Calendar were of no effect because the day of execution of the Will
was Monday, as stated by the witnesses. Further, the Trial Court found
F
that the making of signatures by the testator by different pens on different
pages was duly explained by the witness PW-4.
14. 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
G
passages extracted hereinbefore. Having examined the material placed
on record, in our view, the observations and findings of the High Court
remain unexceptionable.
15. Taking up the document itself, it is not in dispute that the same
is carrying 5 typed pages on 3 different sheets of papers, which are
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 707
[DINESH MAHESHWARI, J.]

definitely not of the same colour. It had been noticed by the Trial Court A
as also by the High Court, and it remains indisputable, that the said papers
are of different colours and have not been picked up from the same
stack. Use of 3 different sheets of paper for typing a document of Will
running in 5 pages (with first and second paper being typed on both
sides) is, in any case, not a normal action by a normal person in normal
B
circumstances. True it is that this aspect could have been cleared only
by the typist and the propounders are not expected to know the typist,
particularly when they had not participated in execution and attestation
of the document but, this circumstance is enough to indicate that the
matter calls for closer scrutiny with due regard to all the surrounding
factors because, ordinarily, such document would be typed in one sitting C
and on the papers drawn from the same stack.
15.1. Proceeding further, another feature surfaces, which was
found by the High Court (though not discussed by the Trial Court). This
feature is about the placement of the signatures of the testator on 3
pages, where it is apparent that on the first and the last page, the distance D
of signatures from the typewritten contents is excessive than usual or
natural. It is not in dispute that this feature also emanates from a bare
look at the document in question.
15.2. The aforementioned two features, by themselves, may not
be of material bearing but this much is clear that they stand at E
contradistinction to the ordinary course of dealings and give rise to
legitimate suspicions about the genuineness of document. Now, the
suspicion arising from the aforesaid two features is confounded by
another factor that though the document carries 3 signatures of the
testator, the same are not made from the same pen. It has been noticed,
F
and again it remains indisputable, that while the signature of the testator
at page number 1 are from an ink pen, that at page number 3 is from a
ballpoint pen and then, again at page number 5, it is from an ink pen. The
witness PW-4 has attempted to say that for the ink pen being not working
properly, ballpoint pen was used. It sounds utterly unnatural and remains
inexplicable that if the ink pen was not working and the second signature G
was made from a ballpoint pen, as to how and why the third signature,
that is, the last one, was again made from another ink pen? It had not
been the explanation of the attesting witnesses that after making the
signature at page number 3, the ballpoint pen also stopped working and,
therefore, another ink pen was used for making the third signature. We H
708 SUPREME COURT REPORTS [2020] 6 S.C.R.

A may observe that even when the possibility of the testator using different
pens or instruments for his signatures on different pages of the same
document is not ruled out altogether and even this fact, by itself, may not
be decisive of the matter but, this much is certain that such happening
cannot be categorised as normal or natural in the course of execution of
B a document of Will.
15.3. 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
C 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
D testator.
15.4. 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
E 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
F 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
G 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 witnesses.

H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 709
[DINESH MAHESHWARI, J.]

15.4.2. In relation to this aspect of want of signatures of the A
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
B
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 C
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 D
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, E
the normal course of happenings.
15.4.3. 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 F
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 conclusion.
G
15.5. 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
H
710 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 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
B
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
C 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,
D
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
E genuine document.
16. 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
F 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
G 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
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 711
[DINESH MAHESHWARI, J.]

to paper, pen and signature get magnified with blank spaces in the A
document as also with incorrect and inexplicable recitals.
17. 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 B
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 C
vehicular accident.
18. 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 D
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
E
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 examined.
19. When all the aforesaid abnormal, curious and rather mysterious F
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 G
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
H
712 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 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
B 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 approved.
19.1. It is sought to be contented on behalf of the appellants that
using of blank papers had not been the objection taken by the defendants.
C The contention remains bereft of substance for the simple reason that
the defendants indeed asserted that the document in question was a
fabricated one. The likelihood of it being drawn on the available blank
papers with signatures of the testator is nothing but a deduction that
logically comes out of the examination of the document in question.
D 20. Much emphasis is laid on behalf of the appellants on the
submissions that execution of the Will in accordance with the requirements
of Section 63 of the Succession Act and Section 68 of the Evidence Act
has been duly established on record with the testimony of the attesting
witnesses as also the witness with whom the Will along with the
handwritten draft of the Will had been deposited by the testator. The
E
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
F cannot be accepted as a Will.
21. 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
G 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
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 713
[DINESH MAHESHWARI, J.]

the presence of 4 attesting witnesses; and if he intended such executed A
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 B
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, C
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 unusualness.
22. The Trial Court had largely been swayed by the fact that the
deceased Sangappa was not inclined to give any property to the defendant D
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 above. E

23. 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 F
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 opened.
24. In our view, the document in question falls flat at the very first
G
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 Act.
H
714 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 24.1. 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 document.
WHETHER REMAND WAS CALLED FOR
25. Taking up the other point for determination, the submission of
B 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 rejected.
25.1. The procedure relating to appeals from original decrees
C (usually referred to as ‘regular first appeal’) is provided in Order XLI of
the Code of Civil Procedure, 1908 and therein, various provisions relating
to hearing of an appeal, remand of case, remitting of issues for trial,
production of additional evidence in Appellate Court etc. are contained
in Rules 16 to 29 under the sub-heading ‘Procedure on hearing’. For
D their relevance, we may take note of the provisions contained in Rules
23, 23A, 24 and 25 of Order XLI CPC as follows: -
“23. Remand of case by Appellate Court.- Where the Court
from whose decree an appeal is preferred has disposed of the
suit upon a preliminary point and the decree is reversed in appeal,
E the Appellate Court may, if it thinks fit, by order remand the case,
and may further direct what issue or issues shall be tried in the
case so remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is preferred,
with directions to re- admit the suit under its original number in
the register of civil suits, and proceed to determine the suit; and
F
the evidence (if any) recorded during the original trial shall, subject
to all just exceptions, be evidence during the trial after remand.
23A. Remand in other cases.- Where the Court from whose
decree an appeal is preferred has disposed of the case otherwise
than on a preliminary point, and the decree is reversed in appeal
G and a re-trial is considered necessary, the Appellate Court shall
have the same powers as it has under rule 23.
24. Where evidence on record sufficient, Appellate Court
may determine case finally.- Where the evidence upon the record
is sufficient to enable the Appellate Court to pronounce judgment,
H
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 715
[DINESH MAHESHWARI, J.]

the Appellate Court may, after resettling the issues, if necessary, A
finally determine the suit, notwithstanding that the judgment of
the Court from whose decree the appeal is preferred has proceeded
wholly upon some ground other than that on which the Appellate
Court proceeds.
25. Where Appellate Court may frame issues and refer them B
for trial to Court whose decree appealed from.-Where the
Court from whose decree the appeal is preferred has omitted to
frame or try any issue, or to determine any question of fact, which
appears to the Appellate Court essential to the right decision of
the suit upon the merits, the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court from C
whose decree the appeal is preferred, and in such case shall direct
such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return
the evidence to the Appellate Court together with its findings D
thereon and the reasons therefor within such time as may be fixed
by the Appellate Court or extended by it from time to time.”
25.2. Rule 23A came to be inserted in Order XLI CPC by way of
the Code of Civil Procedure (Amendment) Act, 1976. Prior to this
amendment, it was generally accepted by the Courts that although under E
Rule 23, an order of remand could be made only on reversal of a decree
disposing of suit on a preliminary point but, the Appellate Court has the
inherent power of remanding a case where it was considered necessary
to do so in the interest of justice. Some of the High Courts had made
similar provisions by way of their respective amendments. Insertion of
Rule 23A in Order XLI by the Amending Act of 1976 makes it explicit F
that even when the suit has been disposed of otherwise than on a
preliminary point and the decree is reversed in appeal, the Appellate
Court shall have the power of remand, if a re-trial is considered
necessary.8
8
G
Such powers of remand, as provided in Rules 23 and 23A of Order XLI, are different
than the power of the Appellate Court to remit an issue for findings under Rule 25. The
power of remitting is ordinarily to be resorted to when the Trial Court has omitted to
try any material issue or to determine any question of fact. In other words, the proper
procedure in a case where the Trial Court, while disposing of the suit on merits, had
failed to determine one or more of the material issues/questions, is to remit the issue/
question(s) under Rule 25 and not to remand the whole case for re-trial. Ordinarily, in H
716 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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

G the case of an order under Rule 25 of Order XLI, the matter is retained on the file of the
Appellate Court and only the issue/question(s) are remitted to the Trial Court for
findings. On the other hand, when an order of remand is made 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
H decree when taking recourse to Rule 25 of Order XLI.
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS. 717
[DINESH MAHESHWARI, J.]

Trial Court partly decreed the suit while holding that the plaintiffs were A
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
B
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 C
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
D
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 E
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
F
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.
G
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
H
718 SUPREME COURT REPORTS [2020] 6 S.C.R.

A 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
B 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
26. For what has been discussed hereinabove, we are satisfied
C that the High Court has rightly interfered with the decision of the Trial
Court and has rightly held that the document in question cannot be
accepted as the genuine Will of the deceased Sangappa; and there was
no reason for the High Court to remand the case to the Trial Court.
27. Accordingly, and in view of the above, this appeal fails and is,
D therefore, dismissed while leaving the parties to bear their own costs
throughout.

E Ankit Gyan Appeal dismissed.

F

G

H