THANGAM AND ANOTHERversusNAVAMANI AMMAL

                 [2024] 3 S.C.R. 146 : 2024 INSC 164

                         Thangam and Another
                                 v.
                           Navamani Ammal
                      (Civil Appeal No. 8935 of 2011)
                                04 March 2024
             [C.T. Ravikumar and Rajesh Bindal,* JJ.]

                           Issue for Consideration
       Genuineness of the Will, a registered document, executed by
       testator (husband of appellant no.1 and father of appellant no.2)
       in favour of respondent-plaintiff (daughter of his brother).

                                  Headnotes
       Will – Genuineness of – When not surrounded by suspicious
       circumstances – By way of Will, the testator bequeathed a
       part of his property in favour of the respondent-daughter of
       his brother – Names of his widow-appellant no.1 and minor
       daughter- appellant no.2 were not mentioned in the Will –
       Suit filed by the respondent for declaration and injunction
       was decreed, Will was held to be genuine by the Trial Court
       – Decree of the Trial Court reversed by First Appellate
       Court – High Court restored the decree of the Trial Court –
       Correctness:
       Held: From the evidence of the witnesses with reference to the
       health of the testator, the Will cannot be held to be suspicious on
       the ground of the alleged ill-health of the testator at the time of
       the its execution – It is the admitted case of the appellants that
       the testator left behind about 8 acres of land and three houses
       – What was bequeathed to the respondent was merely a part of
       testator’s entire property i.e. land measuring approximately 3.5
       Acres – Meaning thereby the balance property of the testator was
       in possession of widow and daughter – This is how the interest of
       the natural legal heirs was taken care of – The reason to bequeath
       a part of the property in favour of the respondent is also evident
       from the material available on record – No error committed by
       the High Court in holding that the Will was not surrounded by the
       suspicious circumstances as the scribe and one of the witnesses
       were unison – The testator was conscious of the fact that he had

* Author
[2024] 3 S.C.R.                                                               147

               Thangam and Another v. Navamani Ammal


     a wife and a minor child whose interest had been taken care of
     by leaving part of the property for them – No merit in the appeal.
     [Paras 9.5, 12, 13 and 16]
     Code of Civil Procedure, 1908 – Order VIII Rules 3 and 5 –
     Specific admission and denial of the pleadings – Need of –
     Emphasised – Plaint filed by the respondent contained ten
     paragraphs besides the prayer – In the written statement filed
     by the appellants, there was no specific denial to the claim
     made by the respondent, no para-wise reply was given – In
     absence thereof, the allegations in the plaint were deemed
     to be admitted:
     Held: In the absence of para-wise reply to the plaint, it becomes
     a roving inquiry for the Court to find out as to which line in some
     paragraph in the plaint is either admitted or denied in the written
     statement filed, as there is no specific admission or denial with
     reference to the allegation in different paras – Order VIII Rules
     3 and 5 CPC clearly provides for specific admission and denial
     of the pleadings in the plaint – A general or evasive denial is not
     treated as sufficient – Proviso to Order VIII Rule 5 CPC provides
     that even the admitted facts may not be treated to be admitted, still
     in its discretion the Court may require those facts to be proved –
     This is an exception to the general rule – General rule is that the
     facts admitted, are not required to be proved – The requirement of
     Order VIII Rules 3 and 5 CPC are specific admission and denial
     of the pleadings in the plaint – The same would necessarily mean
     dealing with the allegations in the plaint para-wise. [Paras 15-15.2]

                               Case Law Cited
           Badat and Co. Bombay Vs. East India Trading Co.,
           [1964] 4 SCR 19 : AIR 1964 SC 538; Lohia Properties
           (P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram
           Kumar, (1993) 4 SCC 6 – relied on.

                                 List of Acts
     Code of Civil Procedure, 1908.

                              List of Keywords
     Will; Genuineness; Not surrounded by suspicious circumstances;
     Interest of the natural legal heirs taken care of; Pleadings; Admission
     and denial of the pleadings.
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                                         Case Arising From
       CIVIL APPELLATE JURISDICTION : Civil Appeal No.8935 of 2011
       From the Judgment and Order dated 18.04.2007 of the High Court
       of Madras in SA No.1344 of 1996
                                    Appearances for Parties
       K. K. Mani, Ms. T. Archana, Rajeev Gupta, Advs. for the Appellants.
       Pulkit Tare, D. Kumanan, Sandeepan Pathak, Suvendu Suvasis
       Dash, Advs. for the Respondent.
                       Judgment / Order of the Supreme Court

                                                   Judgment
       Rajesh Bindal, J.
1.     The issue under consideration in the present appeal is regarding
       genuineness of the Will dated 09.10.1984, which is a registered
       document, executed by Palaniandi Udyar in favour of Navamani
       Amma.
2.     A suit1 filed by the respondent/plaintiff for declaration and injunction
       was decreed by the Trial Court2, holding the Will to be genuine. In
       appeal3 by the appellants, judgment and decree of the Trial Court was
       reversed by the First Appellate Court4. In second appeal5 filed by the
       respondent the judgment and decree of the First Appellate Court was
       set aside and that of the Trial Court was restored by the High Court6.
3.     Before we embark upon to consider the issues in detail, we deem it
       appropriate to mention the relations between the parties and certain
       brief facts.
       3.1. The testator of the Will dated 09.10.1984, Palaniandi Udayar,
            was the husband of appellant no. 1 Thangam and father of
            appellant no. 2 Laila.


1    O.S. No. 402 of 1986.
2    Additional District Munsif Court, Ariyalur.
3    Appeal Suit No. 7 of 1991.
4    Subordinate Judge, Ariyalur.
5    Second Appeal No. 1344 of 1996.
6    High Court of Judicature at Madras.
[2024] 3 S.C.R.                                                           149

               Thangam and Another v. Navamani Ammal


     3.2. The Will was executed on 09.10.1984 in favour of Navamani
          Amma/Plaintiff, who as per the narration in the Will is said to
          be daughter of the brother of the testator.
     3.3. The defendant in the suit originally filed was widow of the testator,
          however, later on his minor daughter was also impleaded. Both
          are the appellants before this Court.
     3.4. The appellant no. 1 is the third wife of the testator. The earlier
          two wives expired and were not having any child from the loins
          of the testator.
     3.5. Even as per the admitted case of the defendant no. 1/widow
          of the testator, the testator was having total land about 8 acres
          besides three houses.
     3.6. By way of Will, the testator had bequeathed approximately 3.5
          Acres of land in favour of the plaintiff stating therein that she is
          like his daughter, being daughter of his brother. The value of
          the suit property was estimated to be about ₹16,000/-.
     ARGUMENTS
4.   In the aforesaid factual matrix, the argument raised by learned counsel
     for the appellants challenging the judgment and decree of the High Court
     was that the execution of Will was surrounded by various suspicious
     circumstances and deserves to be discarded as was rightly done by the
     First Appellate Court. The finding of facts recorded by the First Appellate
     Court was erroneously reversed by the High Court without the same
     being perverse. Re-appreciation of the facts merely to come to another
     possible conclusion does not fall within the scope of consideration
     of a matter in second appeal. There was no substantial question of
     law involved in the second appeal before the High Court. There were
     discrepancies in the statements of the scribe and the attesting witnesses
     to the Will. The health of the testator was not good and he was not
     in a position to understand and comprehend the contents of the Will.
     There were differences in the thumb impressions of the testator on the
     Will and on the register in the office of the Sub-Registrar.
5.   Though, admittedly the testator left behind his widow and a minor
     daughter but there is no mention in the Will about the same.
     How their interest was taken care of, the Will is silent. In fact, the
     appellants were in possession of the suit property. The suit filed by
     the respondent was totally misconceived.
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6.     On the other hand, learned counsel for the respondent submitted
       that the execution of Will by a person in favour of any other relative
       always would mean that the testator wishes to take away some
       property from the normal course of inheritance. In fact, the respondent
       being like daughter to the testator was taking care of his health,
       who was suffering from asthma and chronic cough. It is not that the
       entire property owned by the testator was given to the respondent
       by way of Will, rather it was only a part thereof. She is in possession
       of the suit property after the death of the testator. The need to file
       the suit arose more than two years after the death of the testator
       as her possession was disturbed by the appellants. Otherwise also
       the appellants had not taken any step to take care of the testator
       when he was not keeping good health or the property left by him
       after his death. Admittedly, the appellant no. 1 was living away from
       the testator. Even at the time of his death the appellants were not
       present as she came later on. Even the expenses for performing last
       rites of the testator were borne by the husband of the respondent.
       There is no error in the judgment of the High Court. The findings
       recorded by the First Appellate Court being totally perverse were
       rightly interfered by the High Court.
       6.1. In the written statement filed by the appellants, there was no
            specific denial to the claim made by the respondent/plaintiff.
            No para-wise reply was given. In the absence thereof, the
            allegations in the plaint were deemed to be admitted.
       DISCUSSION
7.     Heard learned counsel for the parties and perused the relevant
       referred record. We may record that the translated copies of whatever
       documents have been placed on record by the parties, are being
       considered as such as to the same, no dispute has been raised by
       the either side.
8.     What is required to be considered while examining the correctness of
       the judgment of the High Court is as to whether the Will in question
       was surrounded by suspicious circumstances whereby the testator
       had not mentioned the names of his widow and minor daughter in
       the Will and has bequeathed a part of his property to the respondent.
       8.1. The appellant no. 1 is the third wife of the testator whereas
            the appellant no. 2 is the daughter. From the earlier two wives
            no child was born.
[2024] 3 S.C.R.                                                        151

               Thangam and Another v. Navamani Ammal


9.   Firstly, coming to the health of the testator the Plaintiff/PW-1 stated
     in her examination-in-chief that though the testator was having
     Asthma but otherwise he was in good health condition. In her
     Cross-Examination PW-1 stated that the testator was suffering from
     Asthma and Cough for about 5 to 6 years. She denied that the
     testator was having any drinking habit. She denied the suggestion
     that the testator was bed-ridden for three months before executing
     the Will.
     9.1. PW-2/Vadivelu, who is an attesting witness to the Will, in his
          cross-examination stated that he inquired about the health of
          the testator and he told PW-2 that he was having some cough
          problem and was otherwise suffering from T.B.
     9.2. PW-3/Govindasamy, who was a witness in the office of Sub-
          Registrar, in his cross-examination stated that at the time of
          execution of Will the testator was having cough.
     9.3. PW-4/Subramanian, who is Scribe of the Will, stated in his
          examination-in-chief that at the time of execution of Will the
          testator was in good physical condition and he was having
          cough only. He was not put any question in this regard in
          cross-examination.
     9.4. DW-1/Thangam Ammal, who is the widow of the testator, stated
          in her examination-in-chief that before his death the testator
          ‘was suffering from lever wound and he had dysentery and
          suffered very much’ (sic). DW-1 in her cross-examination sated
          that three months before his death the testator was not in good
          physique and before that he was in good condition. DW-1 further
          stated that the testator was bed ridden for 3 months and she
          was taking care of him.
     9.5. From the aforesaid evidence of the witnesses with reference
          to the health of the testator we do not find that he was not
          in good senses and was unable to understand his welfare or
          take correct decisions. Hence, the Will cannot be held to be
          suspicious on the ground of the alleged ill-health of the testator
          at the time of the execution of the Will.
10. Now, coming to another aspect with reference to the genuineness of
    the Will, the PW-4/Subramanian, who is scribe of the Will, stated in
    his examination-in-chief that the testator had put his thumb impression
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       on the Will and that he witnessed the same. He further stated the
       Will was registered in the office of Sub-Registrar.
       10.1. In his cross-examination, he stated that on enquiry testator
             told him that the Plaintiff can take the suit property and other
             properties can be taken by the Defendants i.e., his wife and
             daughter. This shows that even at the time of execution of the
             Will, the testator was fully conscious of the welfare of his widow
             and minor daughter as sufficient property was left for them.
11. The Plaintiff examined PW-2/Vadivelu, who was the attesting witness
    to the Will. In his examination-in-chief he stated that the testator was
    very well known to him and that he was witness in the above Will. He
    stated that the Will was written under a tree at Palavur. Details were
    given by the Testator. After writing of Will, the testator asked PW-4/
    scribe to read over the same. After hearing and being satisfied the
    testator had put his thumb impression. He and one other attesting
    witness, Muruganian (DW-2), had witnessed the testator putting
    thumb impression on the Will. In his cross-examination he stated
    that the Will was written without compulsion and in good conscious
    were expressed by Testator alone. He asked testator whether he
    was having any legal heir and testator told him that as per his desire
    alone the Will was written.
       11.1. The Defendants examined Murugaian, who was also an
             attesting witness to the Will, as DW-2, who in his examination-
             in-chief stated that he was asked by Paramasivam, who is
             husband of the Plaintiff, to be witness in the office of Sub-
             Registrar. He further stated that he was requested to sign
             as witness and after putting his signature he returned. DW-2
             further stated that he did not see the testator put his thumb
             impression. In Cross-examination DW-2 stated that he saw
             the testator sitting under a tree and that the testator told him
             that he was writing the Will in favour of his heirs.
12. It is the admitted case of the appellants that the testator left behind
    about 8 acres of land and three houses. What has been bequeathed
    to the respondent is merely a part of testator’s entire property i.e.
    land measuring approximately 3.5 Acres. Meaning thereby the
    balance property of the testator is in possession of widow and
    daughter. This is how the interest of the natural legal heirs has
    been taken care of.
[2024] 3 S.C.R.                                                         153

               Thangam and Another v. Navamani Ammal


     12.1. The reason to bequeath a part of the property in favour of the
           respondent is also evident from the material available on record.
           It has come in evidence that the testator was not keeping
           good heath as he was suffering from asthma and cough. The
           appellants were not living with him for quite sometime as it
           is the admitted case of DW-1 in her cross-examination that
           she had gone to her paternal home on account of marriage
           of her brother and was not living with the testator at the time
           of execution of Will. It has also come on record that she was
           not present when the testator died. Expenses for his last rites
           were borne by the husband of the respondent who was taking
           care of the land of the testator.
     12.2. There is nothing on record to suggest that the appellants were
           taking care of the property left by the testator immediately
           after his death or that any steps were taken by them to get
           the same mutated in their favour.
13. From the aforesaid evidence on record, in our opinion, no error has
    been committed by the High Court in holding that the Will was not
    surrounded by the suspicious circumstances as the scribe and one
    of the witnesses were unison. The testator was conscious of the fact
    that he had a wife and a minor child whose interest had been taken
    care of by leaving part of the property for them. It came in response
    to a specific question asked by PW-4 to the testator at the time of
    execution of the Will. It was so stated by PW-4 in his cross-examination.
    Even in para 14 of the written statement, the appellants stated that
    they are enjoying the suit properties and other properties left by the
    testator. This clearly shows that certain part of the properties was
    left by the testator for his widow and minor daughter.
14. Before we part with the judgment we are constraint to observe the
    manner in which the pleadings have been filed in the Trial Courts
    or may be in some cases in the High Courts.
     14.1. A perusal of the plaint filed by the respondent shows that it
           contains ten paragraphs besides the prayer. In the written
           statement filed by the appellants, no specific para-wise reply
           was given. It was the own story of the respondent containing
           fifteen paragraphs besides the prayer in para 16.
15. In the absence of para-wise reply to the plaint, it becomes a roving
    inquiry for the Court to find out as to which line in some paragraph
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       in the plaint is either admitted or denied in the written statement
       filed, as there is no specific admission or denial with reference to
       the allegation in different paras.
       15.1. Order VIII Rules 3 and 5 CPC clearly provides for specific
             admission and denial of the pleadings in the plaint. A general
             or evasive denial is not treated as sufficient. Proviso to Order
             VIII Rule 5 CPC provides that even the admitted facts may
             not be treated to be admitted, still in its discretion the Court
             may require those facts to be proved. This is an exception to
             the general rule. General rule is that the facts admitted, are
             not required to be proved.
       15.2. The requirement of Order VIII Rules 3 and 5 CPC are specific
             admission and denial of the pleadings in the plaint. The same
             would necessarily mean dealing with the allegations in the
             plaint para-wise. In the absence thereof, the respondent can
             always try to read one line from one paragraph and another
             from different paragraph in the written statement to make out
             his case of denial of the allegations in the plaint resulting in
             utter confusion.
       15.3. In case, the defendant/respondent wishes to take any
             preliminary objections, the same can be taken in a separate
             set of paragraphs specifically so as to enable the plaintiff/
             petitioner to respond to the same in the replication/rejoinder,
             if need be. The additional pleadings can also be raised in the
             written statement, if required. These facts specifically stated
             in a set of paragraphs will always give an opportunity to the
             plaintiff/petitioner to respond to the same. This in turn will enable
             the Court to properly comprehend the pleadings of the parties
             instead of digging the facts from the various paragraphs of the
             plaint and the written statement.
       15.4. The issue regarding specific admission and denial of the
             pleadings was considered by this Court in Badat and Co.
             Bombay Vs. East India Trading Co7. While referring to Order
             VIII Rules 3 to 5 of the CPC it was opined that the aforesaid
             Rules formed an integrated Code dealing with the manner in


7   [1964] 4 SCR 19 : AIR 1964 SC 538.
[2024] 3 S.C.R.                                                               155

                  Thangam and Another v. Navamani Ammal


              which the pleadings are to be dealt with. Relevant parts of
              para ‘11’ thereof are extracted below:
              "11. Order 7 of the Code of Civil Procedure prescribes,
                   among others, that the plaintiff shall give in the
                   plaint the facts constituting the cause of action and
                   when it arose, and the facts showing the court has
                   jurisdiction. The object is to enable the defendant
                   to ascertain from the plaint the necessary facts so
                   that he may admit or deny them. Order VIII provides
                   for the filing of a written-statement, the particulars to
                   be contained therein and the manner of doing so;
                          XXX 		XXX			XXX
                      These three rules form an integrated code dealing
                      with the manner in which allegations of fact in
                      the plaint should be traversed and the legal
                      consequences flowing from its non- compliance.
                      The written statement must deal specifically with
                      each allegation of fact in the plaint and when a
                      defendant denies any such fact, he must not do so
                      evasively, but answer the point of substance. If his
                      denial of a fact is not specific but evasive, the said
                      fact shall be taken to be admitted. In such an event,
                      the admission itself being proof, no other proof is
                      necessary.”
     15.5. The matter was further considered by this Court in Lohia
           Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs.
           Atmaram Kumar8 after the 1976 Amendment Act in CPC
           whereby the existing Rule 5 of Order VIII of the CPC was
           numbered as sub-rule (1) and three more sub-rules were added
           dealing with different situations where no written statement
           is filed. In paras 14 and 15 of the aforesaid judgment, the
           position of law as stated earlier was reiterated. The same are
           extracted below:
              "14. What is stated in the above is, what amount to admit
                   a fact on pleading while Rule 3 of Order 8 requires


8   (1993) 4 SCC 6.
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                  that the defendant must deal specifically with each
                  allegation of fact of which he does not admit the truth.
             15. Rule 5 provides that every allegation of fact in the
                 plaint, if not denied in the written statement shall be
                 taken to be admitted by the defendant. What this
                 rule says is, that any allegation of fact must either be
                 denied specifically or by a necessary implication or
                 there should be at least a statement that the fact is
                 not admitted. If the plea is not taken in that manner,
                 then the allegation shall be taken to be admitted.”
       15.6. We have made the aforesaid observations as regularly this
             Court is faced with the situation where there are no specific
             para-wise reply given in the written statement/counter affidavit
             filed by the defendant(s)/respondent(s). In our opinion, if the
             aforesaid correction is made, it may streamline the working.
16. For the reasons mentioned above, we do not find any merit in the
    present appeal. The same is, accordingly, dismissed.


       Headnotes prepared by: Divya Pandey                  Result of the case:
                                                             Appeal dismissed.