V. PRABHAKARAversusBASAVARAJ K. (DEAD) BY LR. & ANR.

                        [2021] 11 S.C.R. 377                              377


                         V. PRABHAKARA                                    A
                                  v.
            BASAVARAJ K. (DEAD) BY LR. & ANR.
                (Civil Appeal Nos.1376-1377 of 2010)
                        OCTOBER 07, 2021                                  B
   [SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
       Will – Indian Succession Act – s.63 – Evidence Act – s.68 –
Code of Civil Procedure, 1908 – s.96 – Suit for declaration and
possession of suit property – Appellant claimed title over the property
                                                                          C
on the basis of registered Will (Ext.P4) executed by the owner –
Respondents admitted execution of Ext.P4, however sought dismissal
of suit in view of a subsequent unregistered Will (Ext.D1), allegedly
executed by the owner in favour of respondent no.2 (minor son of
respondent no.1-erstwhile brother-in-law of the appellant) – Suit
decreed by trial court – First Appellate Court dismissed the suit –       D
Review, dismissed – On appeal, held: A testamentary court is not a
court of suspicion, but that of conscience – There was no room for
suspicion over the Will when the testatrix was accompanied by the
sister of the appellant and the Will was attested by his brother and
when both did not raise any issue – Further, respondents did not
deny the factum of the execution of Ext.P4 – The very fact that they      E
relied upon Ext.D1, which took note of Ext.P4 as validly done, there
was no need for any suspicion on the part of the High Court –
Mere exclusion of either brother or sister per se would not create a
suspicion unless it is surrounded by other circumstances creating
an inference – Appellant duly complied with the mandate of s.63,          F
Succession Act along with s.68, Evidence Act – Appellate Court
unnecessarily created suspicion, when there was none – Appellate
Court did not consider relevant materials and substituted its own
views when not warranted – Judgment of the Appellate Court as
confirmed in review, set aside – Decree of trial court restored.
                                                                          G
      Code of Civil Procedure, 1908 – s.96 – Appellate Court, power
under – Scope and ambit of – Discussed.
      Evidence Act, 1872:
      ss.3, 8 – Held: When a party makes a claim based on
revocation of earlier Will, as indicated in the subsequent Will, the      H
                                 377
378            SUPREME COURT REPORTS                     [2021] 11 S.C.R.


A     acknowledgment of the former Will would form part of a conduct
      leading to a relevant fact vis-à-vis a fact in issue.
            ss.17, 58 – Held: When a party admits execution of a Will,
      which is otherwise proved in accordance with s.63, Indian Succession
      Act and s.68, Evidence Act, it becomes a relevant fact duly proved –
B     Indian Succession Act – s.63 – Evidence Act – s.68.
            s.68 – Held: s.68 is to be followed mandatorily for proving a
      Will – This provision has to be seen and read alongwith s.63,
      Succession Act – Indian Succession Act – s.63.
            Registration Act, 1908 – ss.17, 18, 27 – Held: Registration of
C     a Will is only an additional/attending circumstance in proving it
      with the rebuttable presumption available u/s.114(e) of Evidence
      Act – Evidence Act, 1872 – s.114(e), 115.
            Code of Civil Procedure, 1908 – Or. VI, VIII – Pleadings –
      Held: A relief can be on the basis of pleadings alone – Evidence is
D     also to be based on such pleadings – Only exception would be
      when the parties know each other’s case very well and a pleading
      is implicit in an issue.
            Allowing the appeals, the Court
             HELD: 1. Section 3 of the Indian Evidence Act defines “a
E
      fact”. Conduct of a party would be construed as a fact under
      Section 8. Such a conduct may either be a previous or subsequent
      one. It is the product of a motive or a preparation. When evidence
      is given on the conduct of a party and if it is proved to the
      satisfaction of the court particularly when it involves an admission,
F     adequate weightage is required to be given. Such a conduct would
      include a silence emanating from a party who is expected to speak
      and express. When a party makes a claim based upon revocation
      of the earlier Will, as indicated in the subsequent one, the said
      acknowledgement of the former would form part of a conduct
      leading to a relevant fact vis-à-vis a fact in issue. Section 17
G
      defines “an admission” which would include a statement both
      oral and documentary. When such an admission is clear and
      unequivocal, there is no need to prove it while taking judicial
      notice. Under Section 58, a fact admitted need not be proved
      unless the court warrants it. Thus, in a case where a party admits
H
    V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                   379


the execution of the document in the nature of a Will, which is          A
otherwise proved in accordance with Section 63 and Section 68
of the Indian Succession Act and Indian Evidence Act respectively,
it becomes a relevant fact duly proved, in the absence of any
discretion by the court. The exercise of discretion is a judicial
one and therefore, there must be a basis in asking a party to
                                                                         B
prove it otherwise. Section 68 speaks of a requirement of proving
the execution of a document required by law to be attested. This
provision being mandatory as the word employed is “shall”,
meaning thereby it shall not be used as evidence unless one
attesting witness at least has been called for to prove its
execution. When it comes to proving a Will, Section 68 of the Act        C
is mandatorily to be followed. This provision has to be seen and
read along with Section 63 of Indian Succession Act which not
only mandates a compulsory attestation but reiterates compliance
of section 68 of the Indian Evidence Act. Section 114 facilitates a
court to presume existence of certain facts. As the word employed
                                                                         D
being “may”, it is a rebuttable presumption. Under Section 114(e)
there is a presumption of judicial and official acts having been
regularly and duly performed. The principle governing estoppel
is defined under Section 115 of the Act. [Paras 14-18][385-C-H;
386-A-C]
      2. The registration of a Will is only an additional or attending   E
circumstance in proving it with the rebuttable presumption
available under Section 114(e) of the Indian Evidence Act.
[Para 19][386-E]
      3. Order VI of the Code while defining the word “pleading”
makes it applicable on even terms to both a plaint and written           F
statement. A relief can only be on the basis of the pleadings alone.
Evidence is also to be based on such pleadings. The only
exception would be when the parties know each other’s case very
well and such a pleading is implicit in an issue. Additionally, a
court can take judicial note of a fact when it is so apparent on the     G
face of the record. [Para 20][386-F; 387-A-B]
      4. The first appellate court while exercising power under
Section 96 can re-do the exercise of the trial court. However,
such a power is expected to be exercised with caution. The reason
                                                                         H
380            SUPREME COURT REPORTS                      [2021] 11 S.C.R.


A     being, the trial court alone has the pleasure of seeing the
      demeanor of the witness. In exercising such a power, the appellate
      court has to keep in mind the views of the trial court. If it finds
      that the trial court is wrong, its decision should be on the reasoning
      given. A mere substitution of views, without discussing the findings
      of the trial court, by the appellate court is not permissible. If two
B
      views are possible, it would only be appropriate to go with the
      view expressed by the trial court. While adopting reasoning in
      support of its findings, the appellate court is not expected to go
      on moral grounds alone. Though the first appellate court is the
      final court of fact and law, it has to fall in line with the scope
C     and ambit of Section 96 of the Code. [Paras 21 and 23][388-D-F;
      393-H]
            Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 :
            [2008] 14 SCR 621; Jagdish Singh v. Madhuri Devi,
            (2008) 10 SCC 497 : [2008] 6 SCR 1176 – relied on.
D           5. A testamentary court is not a court of suspicion but that
      of conscience. It has to consider the relevant materials instead
      of adopting an ethical reasoning. A mere exclusion of either
      brother or sister per se would not create a suspicion unless it is
      surrounded by other circumstances creating an inference. In a
E     case where a testatrix is accompanied by the sister of the
      beneficiary of the Will and the said document is attested by the
      brother, there is no room for any suspicion when both of them
      have not raised any issue. The Appellant duly complied with the
      mandate of Section 63 of the Indian Succession Act along with
      Section 68 of the Indian Evidence Act. PW2 being the brother of
F     the Appellant and the other sister were present at the time of
      execution of Exhibit P4. They have not raised any demur. Both
      the Courts found that Exhibit D1 is a forged and fabricated
      document. The alleged mortgage in favor of Respondent No.1
      has not been proved. The Appellate Court unnecessarily created
G     a suspicion when there is none. The Respondents have not denied
      the factum of the execution of Exhibit P4. The very fact that they
      made reliance upon Exhibit D1, which took note of Exhibit P4 as
      validly done, there is no need for any suspicion on the part of the
      High Court. That too, when the Trial Court did not find any. Such
      a suspicion did not arise from either of the siblings of the Appellant
H
     V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                       381


who would otherwise be entitled to a share in the Suit Property.              A
The High Court did not give any reasoning whatsoever for
differing with the views expressed by the Trial Court. The
Appellate Court has not considered the relevant materials and
substituted its own views when not warranted either on facts or
law. The judgment and decree of the Appellate Court as confirmed
                                                                              B
in R.P No.279 of 2007, are set aside. The Judgment and
Decree of the Trial Court is restored. [Paras 24, 25, 27, 28 and
30][394-A-E; 395-A, C-D, G]
      Joseph Antony Lazarus (Dead) by LRs v A.J. Francis
      (2006) 9 SCC 515 : [2006] 3 SCR 709; Mahesh Kumar
      (Dead) By LRs v Vinod Kumar & Ors. (2012) 4 SCC                         C
      387 : 2012 (3 ) JT 338 – referred to.
                         Case Law Reference
[2006] 3 SCR 709                  referred to               Para 13
[2008] 14 SCR 621                 relied on                 Para 20           D
[2008] 6 SCR 1176                 relied on                 Para 21
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1376-
1377 of 2010.
      From the Judgment and Order dated 20.09.2006 of the High Court          E
of Karnataka at Bangalore in R.F.A. No.692 of 2004 and order dated
23.11.2007 in R.P. No.279 of 2007.
      Anand Sanjay M. Nuli, Suraj Kaushik, Agam Sharma, Dharm
Singh, M/s Nuli & Nuli, Advs. for the Appellant.
      Ms. Kiran Suri, Sr. Adv., S. J. Amith, Krishna Kumar, Dr. (Mrs.)        F
Vipin Gupta, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      M. M. SUNDRESH, J.
      BACKGROUND FACTS:                                                       G
       1. The Suit Property originally belonged to one Ms. Jessie
Jayalakshmi (since deceased). The deceased Ms. Jessie Jayalakshmi, a
spinster, was the maternal aunt of the Appellant/Plaintiff. Mr. Vijay Kumar
and Ms. Kantha Lakshmi were his brother and sister, respectively. It is
the case of the Appellant that the deceased, Ms. Jessie Jayalakshmi           H
382            SUPREME COURT REPORTS                          [2021] 11 S.C.R.


A     adopted him as her son and that he took care of her when she suffered
      an attack of paralysis.
             2. A registered Will under Exhibit P4 was executed by Ms. Jessie
      Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was
      attested by Mr. Vijay Kumar, brother of the Appellant, who has also
B     been examined as PW2.
            Ms. Jessie Jayalakshmi was also brought to the office of the Sub-
      Registrar by none other than Ms. Kantha Lakshmi.
             3. The relationship between Ms. Kantha Lakshmi and her husband,
C     who has been arrayed as Respondent No. 1 got strained. She consequently
      filed a petition for divorce in MC No. 879 of 1987 before the Family
      Court of Principal Judge, Bangalore and obtained a divorce decree on
      26.03.1988. It is the further case of the Appellant that Respondent No.
      1 was permitted to reside in the Suit Property. Respondent No. 2 is the
      son of Respondent No. 1. As the Respondent No. 1 refused to vacate
D     the Suit Property, which is a residential house, for which the Appellant is
      stated to have paid all the statutory dues, a suit for declaration and for
      possession was filed in O.S. No. 51 of 1992 which was decreed on
      11.12.2003.
             4. The Defendants/Respondents while acknowledging the factum
E     of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will,
      allegedly executed by Ms. Jessie Jayalakshmi in favour of the Respondent
      No.2 (minor son of Respondent No.1). It is their case that Exhibit P4
      has been replaced by Exhibit D1. Exhibit D1 also speaks of a mortgage
      in favour of Respondent No.1 on payment of Rs. 31,000/- in favor of
F     deceased, Ms. Jessie Jayalakshmi. Thus, the Respondent did not seriously
      dispute the execution of Exhibit P4 but set up a plea for the dismissal of
      the suit by taking umbrage under Exhibit D1 and on the basis of the
      alleged mortgage. There was also a denial of the averment of the
      Appellant regarding permissive occupation. While accepting the decree
      for divorce it is contended by the 1st Respondent that it has not been
G     given effect to.
            5. The Trial Court framed the following issues for consideration:
                   “1.    Does the Plaintiff prove to have acquired title to the
                          suit property by virtue of the Will 04.09.1985 executed
H                         by late Jessie Jayalakshmi?
     V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                      383
                  [M. M. SUNDRESH, J. ]

             2.     Does he prove that the Will dated 16.08.1996             A
                    executed by Jessie Jayalakshmi is fabricated and
                    forged document?
             3.      Does he prove that the Defendant is in occupation
                    of the schedule property as licensee free of charges?
             4.     Whether the Plaintiff has the cause of action for the    B
                    suit?
             5.     Is the suit barred by limitation?
             6.     What order or decree the parties are entitled to?”
      6. The Appellant examined himself as PW1 with his brother as           C
PW2. The second attesting witness was examined as PW3 being an
independent one. On behalf of the Respondents, Respondent No.1
examined himself as DW1, with the attesting witness, Manish as DW2.
       7. The Trial Court decreed the suit upon satisfying itself that the
parameters as required under Section 63 of the Indian Succession Act         D
read with Section 68 of the Indian Evidence Act have been duly complied
with in proving Exhibit P4. On Exhibit D1, exhaustive reasoning was
rendered for doubting its genuineness. The reasoning would include the
thumb impression, signature, the nature of recitals, the manner in which
it was written, and the evidence given by DW2, who did not know anything
                                                                             E
about the deceased, Ms. Jessie Jayalakshmi, other than being a person
known to DW1. It found that the thumb impression in Exhibit D1 was
smudged and the scribe of Exhibit D1 has not been examined. Further,
the stamp on Exhibit D1 bearing date of 15.08.1986 and bearing the seal
of the treasury happened to be issued on Independence Day. We may
also note that Exhibit D1 was stated to have been executed on 16.08.1986     F
while Ms. Jessie Jayalakshmi died on 22.08.1986 i.e., within a week’s
time.
      8. Aggrieved over the same, the Respondents filed an appeal
before the High Court invoking Section 96 of the Civil Procedure Code
in RFA No. 692 of 2004 which was decided on 20.09.2006.                      G
      9. The High Court reaffirmed the findings of the Trial Court with
respect to the genuineness of Exhibit D1. However, in the absence of
any specific pleading coupled with an admission of the execution of
Exhibit P4, the High Court did an exercise by entertaining a suspicion
and accordingly found that it has not been dispelled by the Appellant.       H
384            SUPREME COURT REPORTS                          [2021] 11 S.C.R.


A     Findings have been rendered to the effect that there is no logic in the
      exclusion of the sister of the Appellant and PW2. Incidentally, it has
      been held that evidence of PW3 would not be sufficient enough to remove
      the suspicion surrounding Exhibit P4 and if the deceased Ms. Jessie
      Jayalakshmi was brought to the office of the Sub-Registrar by Ms. Kantha
      Lakshmi, there was no basis to leave her out of the Will. On that basis,
B
      the suit was dismissed by allowing the appeal.
             10. An application for review was filed by the Appellant along
      with an application for condonation of delay. This application was filed
      in R.P. 279 of 2007 which was dismissed by the High Court declining to
      condone the delay on 23.11.2007. The Appellant has filed the present
C     appeals against the aforesaid judgement and decree rendered by the
      High Court.
             11. During the pendency of the pleadings before this Court,
      Respondent No.1 died. His divorced wife Ms. Kantha Lakshmi also
      died. Consequently, along with Respondent No.2, a daughter born out of
D     the wedlock (Respondent No. 1(b)) was brought on record as additional
      legal heir of the deceased Respondent No.1.
            ARGUMENTS OF THE APPELLANT:
             12. It is argued by the counsel for the Appellant that Exhibit P4 is
E     a registered document. PW2 and 3 have deposed in tune with the said
      document. The fact that Ms. Kantha Lakshmi accompanied the deceased,
      Ms. Jessie Jayalakshmi would show that Exhibit P4 has been executed
      properly. She did not raise any objection. There was no pleading disputing
      Exhibit P4. The High court has created its own suspicion. The findings
      of the Trial Court resulting in decreeing the suit have not been found
F     fault with. Having found Exhibit D1 is a forged and fabricated document,
      the High Court ought to have affirmed the decree and judgment of the
      Trial Court.
            ARGUMENTS OF THE RESPONDENTS:
             13. The question as to whether there exists a suspicious
G
      circumstance is one of fact. Hence, it cannot be adjudicated by invoking
      Article 136 of the Constitution of India. There is no explanation for the
      exclusion of the brother and sister of the Appellant. Exhibit D1 has been
      wrongly rejected by the Courts below. What is important is the validity
      of Exhibit P4. The First Appellate Court has got adequate jurisdiction to
H     satisfy itself on the suspicion surrounding Exhibit P4. Ms. Kiran Suri, the
     V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                       385
                  [M. M. SUNDRESH, J. ]

learned Senior Counsel, to buttress her submission placed reliance upon       A
the following judgements:
      A.     Joseph Antony Lazarus (Dead) by LRs v A.J. Francis,
             (2006) 9 SCC 515
      B.     Mahesh Kumar (Dead) By LRs v Vinod Kumar & Ors.,
             (2012) 4 SCC 387                                                 B

      CONSIDERATION ON LAW:
      Indian Evidence Act, 1872:
       14. Section 3 of the Indian Evidence Act defines “a fact”. Conduct
of a party would be construed as a fact under Section 8. Such a conduct       C
may either be a previous or subsequent one. It is the product of a motive
or a preparation.
        When evidence is given on the conduct of a party and if it is
proved to the satisfaction of the court particularly when it involves an
admission, adequate weightage is required to be given. Such a conduct         D
would include a silence emanating from a party who is expected to speak
and express. When a party makes a claim based upon revocation of the
earlier Will, as indicated in the subsequent one, the said acknowledgement
of the former would form part of a conduct leading to a relevant fact
vis-à-vis a fact in issue.
                                                                              E
       15. Section 17 defines “an admission” which would include a
statement both oral and documentary. When such an admission is clear
and unequivocal, there is no need to prove it while taking judicial notice.
Under Section 58, a fact admitted need not be proved unless the court
warrants it. Thus, in a case where a party admits the execution of the
                                                                              F
document in the nature of a Will, which is otherwise proved in accordance
with Section 63 and Section 68 of the Indian Succession Act and Indian
Evidence Act respectively, it becomes a relevant fact duly proved, in the
absence of any discretion by the court. The exercise of discretion is a
judicial one and therefore, there must be a basis in asking a party to
prove it otherwise.                                                           G
        16. Section 68 speaks of a requirement of proving the execution
of a document required by law to be attested. This provision being
mandatory as the word employed is “shall”, meaning thereby it shall not
be used as evidence unless one attesting witness at least has been called
for to prove its execution. When it comes to proving a Will, Section 68 of    H
386             SUPREME COURT REPORTS                           [2021] 11 S.C.R.


A     the Act is mandatorily to be followed. This provision has to be seen and
      read along with Section 63 of Indian Succession Act which not only
      mandates a compulsory attestation but reiterates compliance of section
      68 of the Indian Evidence Act.
             17. Section 114 facilitates a court to presume existence of certain
B     facts. As the word employed being “may”, it is a rebuttable presumption.
      Under Section 114(e) there is a presumption of judicial and official acts
      having been regularly and duly performed.
             18. The principle governing estoppel is defined under Section 115
      of the Act. When a person by his declaration, act, or omission, intentionally
C     caused or permitted another person to believe a thing to be true and to
      act upon such belief, he shall not be allowed to deny the truth of that
      thing.
             REGISTRATION ACT, 1908:

D            19. Section 17 of the Registration Act deals with documents of
      which registration is compulsory. A Will being a testamentary document
      does not find a place under Section 17 which factum is reiterated under
      Section 18, making such a document to be registered at the option of a
      party. A Will which is originally not registered may be presented for
      registration or deposited at any time under
E
             Section 27. Therefore, the registration of a Will is only an additional
      or attending circumstance in proving it with the rebuttable presumption
      available under Section 114(e) of the Indian Evidence Act.
             CODE OF CIVIL PROCEDURE:
F            Order VI:
             20. Order VI of the Code while defining the word “pleading”
      makes it applicable on even terms to both a plaint and written statement.
      Every pleading under Order VI Rule 2 shall contain a statement of
      material facts on which a party relies either for his claim or defense.
G     Such a pleading should contain the necessary foundation for raising an
      appropriate issue. Under Order VIII Rule 2 a defendant shall make
      specific pleadings while under Rule 3 a denial should be specific. Rule 4
      prohibits an evasive denial and Rule 5 speaks of consequences of not
      denying specifically an averment in a plaint leading to presumption of an
H     admission.
     V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                           387
                  [M. M. SUNDRESH, J. ]

       A relief can only be on the basis of the pleadings alone. Evidence         A
is also to be based on such pleadings. The only exception would be
when the parties know each other’s case very well and such a pleading
is implicit in an issue. Additionally, a court can take judicial note of a fact
when it is so apparent on the face of the record. A useful reference can
be made to the following passage in Bachhaj Nahar v. Nilima Mandal,
                                                                                  B
(2008) 17 SCC 491:
       “15. The relevant principle relating to circumstances in which the
       deficiency in, or absence of, pleadings could be ignored, was stated
       by a Constitution Bench of this Court in Bhagwati Prasad v.
       Chandramaul [AIR 1966 SC 735]: (AIR p. 738, para 10)
           “10. … If a plea is not specifically made and yet it is cov-           C
           ered by an issue by implication, and the parties knew that
           the said plea was involved in the trial, then the mere fact
           that the plea was not expressly taken in the pleadings would
           not necessarily disentitle a party from relying upon it if it is
           satisfactorily proved by evidence. The general rule no doubt is        D
           that the relief should be founded on pleadings made by the
           parties. But where the substantial matters relating to the title
           of both parties to the suit are touched, though indirectly or
           even obscurely, in the issues, and evidence has been led about
           them, then the argument that a particular matter was not
           expressly taken in the pleadings would be purely formal and            E
           technical and cannot succeed in every case. What the Court
           has to consider in dealing with such an objection is: did the
           parties know that the matter in question was involved in
           the trial, and did they lead evidence about it? If it appears
           that the parties did not know that the matter was in issue at the      F
           trial and one of them has had no opportunity to lead evidence
           in respect of it, that un- doubtedly would be a different matter.
           To allow one party to rely upon a matter in respect of which
           the other party did not lead evidence and has had no
           opportunity to lead evidence, would introduce
           considerations of prejudice, and in doing justice to one               G
           party, the Court cannot do injustice to another.”
                                                         (emphasis supplied)
                      xxx                 xxx               xxx
       “23 [Ed.: Para 23 corrected vide Official Corrigendum No.
       F.3/Ed.B.J./89/2009 dated 17-7-2009]. It is fundamental that               H
388             SUPREME COURT REPORTS                            [2021] 11 S.C.R.


A            in a civil suit, relief to be granted can be only with reference to the
             prayers made in the pleadings. That apart, in civil suits, grant of
             relief is circumscribed by various factors like court fee, limitation,
             parties to the suits, as also grounds barring relief, like res judicata,
             estoppel, acquiescence, non-joinder of causes of action or parties,
             etc., which require pleading and proof. Therefore, it would be
B
             hazardous to hold that in a civil suit whatever be the relief that is
             prayed, the court can on examination of facts grant any relief as
             it thinks fit. In a suit for recovery of rupees one lakh, the court
             can- not grant a decree for rupees ten lakhs. In a suit for recovery
             pos- session of property ‘A’, court cannot grant possession of
C            property ‘B’. In a suit praying for permanent injunction, court
             cannot grant a relief of declaration or possession. The jurisdiction
             to grant relief in a civil suit necessarily depends on the pleadings,
             prayer, court fee paid, evidence let in, etc.”
             Section 96:
D            21. The first appellate court while exercising power under Section
      96 can re-do the exercise of the trial court. However, such a power is
      expected to be exercised with caution. The reason being, the trial court
      alone has the pleasure of seeing the demeanor of the witness. Therefore,
      it has got its own advantage in assessing the statement of the witnesses
E     which may not be available to the appellate court. In exercising such a
      power, the appellate court has to keep in mind the views of the trial
      court. If it finds that the trial court is wrong, its decision should be on the
      reasoning given. A mere substitution of views, without discussing the
      findings of the trial court, by the appellate court is not permissible. If two
      views are possible, it would only be appropriate to go with the view
F     expressed by the trial court. While adopting reasoning in support of its
      findings, the appellate court is not expected to go on moral grounds alone.
             22. The aforesaid views expressed by us are nothing but a
      reiteration of the settled principle of law as could be seen through the
      following paragraphs of the decision rendered by this Court in the case
G     of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497:
             “27. It is no doubt true that the High Court was exercising power
             as first appellate court and hence it was open to the Court to
             enter into not only questions of law but questions of fact as well.
             It is settled law that an appeal is a continuation of suit. An appeal
H            thus is a re-hearing of the main matter and the appellate court can
V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                       389
             [M. M. SUNDRESH, J. ]

 re- appraise, re- appreciate and review the entire evidence – oral      A
 as well as documentary and can come to its own conclusion.
 28. At the same time, however, the appellate court is expected,
 nay bound, to bear in mind a finding recorded by the trial court on
 oral evidence. It should not forget that the trial court had an
 advantage and opportunity of seeing the demeanor of witnesses           B
 and, hence, the trial court’s conclusions should not normally be
 disturbed. No doubt, the appellate court possesses the same powers
 as that of the original court, but they have to be exercised with
 proper care, caution and circumspection. When a finding of fact
 has been recorded by the trial court mainly on appreciation of oral
 evidence, it should not be lightly disturbed unless the approach of     C
 the trial court in appraisal of evidence is erroneous, contrary to
 well- established principles of law or unreasonable.
 29. Before more than a century, in Coghlan v. Cumberland
 [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle
 thus;                                                                   D

    “Even where the appeal turns on a question of fact, the Court
    of Appeal has to bear in mind that its duty is to rehear the case,
    and the Court must reconsider the materials before the Judge
    with such other materials as it may have decided to admit. The
    Court must then make up its own mind, not disregarding the           E
    judgment appealed from, but carefully weighing and considering
    it; and not shrinking from overruling it if on full consideration
    the Court comes to the conclusion that the judgment is wrong.
    When, as often happens, much turns on the relative credibility
    of witnesses who have been examined and cross-examined               F
    before the Judge, the Court is sensible of the great advantage
    he has had in seeing and hearing them. It is often very difficult
    to estimate correctly the relative credibility of witnesses from
    written depositions and when the question arises which witness
    is to be believed rather than another; and that question turns
    on manner and demeanour, the Court of Appeal always is, and          G
    must be, guided by the impression made on the Judge who
    saw the witnesses. But there may obviously be other
    circumstances, quite apart from manner and demeanour, which
    may shew whether a statement is credible or not; and these
    circumstances may warrant the Court in differing from the            H
390     SUPREME COURT REPORTS                            [2021] 11 S.C.R.


A        Judge, even on a question of fact turning on the credibility of
         witnesses whom the Court has not seen.”
      (See also observations of Lord Thankerton in Watt v. Thomas,
      [1947 AC 484])
      30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32]
B     the Judicial Committee of the Privy Council, after referring to
      relevant decisions on the point, stated (Quoting from Watt v
      Thomas, [(1947) 1 All ER 582, pp.583 H-584 A]):
         “…but if the evidence as a whole can reasonably be regarded
         as justifying the conclusion arrived at the trial, and especially if
C        that conclusion has been arrived at on conflicting testimony by
         a tribunal which saw and heard the witnesses, the appellate
         court will bear in mind that it has not enjoyed this opportunity
         and that the view of the trial Judge as to where credibility lies
         is entitled to great weight. This is not to say that the Judge of
         first instance can be treated as infallible in determining which
D
         side is telling the truth or is refraining from exaggeration. Like
         other tribunals, he may go wrong on a question of fact, but it is
         a cogent circumstance that a Judge of first instance, when
         estimating the value of verbal testimony, has the advantage
         (which is denied to courts of appeal) of having the witnesses
E        before him and observing the manner in which their evidence
         is given.”
      31. This Court also, before more than half a century in Sarju
      Pershad v. Jwaleshwari, Pratap Narain Singh [AIR 1951 SC
      120] stated: (AIR p. 121, para 7)
F        “7. The question for our consideration is undoubtedly one of
         fact, the decision of which depends upon the appreciation of
         oral evidence adduced in the case. In such cases, the appellate
         court has got to bear in mind that it has not the advantage
         which the trial Judge had in having the witnesses before him
         and of observing the manner in which they deposed in court.
G
         This certainly does not mean that when an appeal lies on facts,
         the appellate court is not competent to reverse a finding of
         fact arrived at by the trial Judge. The rule is and it is nothing
         more than a rule of practice that when there is conflict of oral
         evidence of the parties on any matter in issue and the decision
H        hinges upon the credibility of the witnesses, then unless there
V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                        391
             [M. M. SUNDRESH, J. ]

    is some special feature about the evidence of a particular            A
    witness which has escaped the trial Judge’s notice or there is
    a sufficient balance of improbability to displace his opinion as
    to where the credibility lies, the appellate court should not
    interfere with the finding of the trial Judge on a question of
    fact.”
                                                                          B
 32. Referring to several cases on the point, the Court concluded:
 (Sarju Pershad case, AIR p. 123, para 15):
    “15. …The duty of the appellate court in such cases is to
    see whether the evidence taken as a whole can reasonably
    justify the conclusion which the trial court arrived at or            C
    whether there is an element of improbability arising from
    proved circumstances which, in the opinion of the court,
    outweighs such finding.”
                                                 (emphasis supplied)
 33. After about a decade, in Radha Prasad v. Gajadhar Singh              D
 [AIR 1960 SC 115] this Court reiterated: (AIR p. 123, para 15)
    “14. The position in law, in our opinion, is that when an appeal
    lies on facts it is the right and the duty of the appeal court to
    consider what its decision on the question of facts should be;
    but in coming to its own decision it should bear in mind that it is
                                                                          E
    looking at the printed record and has not the opportunity of
    seeing the witnesses and that it should not lightly reject the
    trial Judge’s conclusion that the evidence of a particular witness
    should be believed or should not be believed particularly when
    such conclusion is based on the observation of the demeanor
    of the witness in court. But this does not mean that merely           F
    because an appeal court has not heard or seen the witness it
    will in no case reverse the findings of a trial Judge even on the
    question of credibility, if such question depends on a fair
    consideration of matters on record. When it appears to the
    appeal court that important considerations bearing on the
                                                                          G
    question of credibility have not been taken into account or
    properly weighed by the trial Judge and such considerations
    including the question of probability of the story given by the
    witnesses clearly indicate that the view taken by the trial Judge
    is wrong, the appeal court should have no hesitation in reversing
    the findings of the trial Judge on such questions. Where the          H
392     SUPREME COURT REPORTS                           [2021] 11 S.C.R.


A        question is not of credibility based entirely on the demeanor of
         witnesses observed in court but a question of inference of one
         fact from proved primary facts the court of appeal is in as
         good a position as the trial Judge and is free to reverse the
         findings if it thinks that the inference made by the trial Judge is
         not justified.”
B
      34. In T.D. Gopalan v. Commissioner of Hindu Religious &
      Charitable Endowments [(1972) 2 SCC 329], this Court said:
      (SCC p. 333, para 9):
        “9. The High Court next proceeded to reproduce a summary
C       of the statement of each of the witnesses produced by the
        defendants. No attempt whatsoever was made to discuss the
        reasons which the learned District Judge had given for not
        accepting their evidence except for a general observation here
        and there that nothing had been suggested in the cross-
        examination of a particular witness as to why he should have
D       made a false statement. We apprehend that the uniform practice
        in the matter of appreciation of evidence has been that if the
        trial court has given cogent and detailed reasons for not
        accepting the testimony of a witness the appellate court in all
        fairness to it ought to deal with those reasons before proceeding
E       to form a contrary opinion about accepting the testimony which
        has been rejected by the trial court. We are, therefore, not in a
        position to know on what grounds the High Court disagreed
        with the reasons which prevailed with the learned District Judge
        for not relying on the evidence of the witnesses produced by
        the defendants.”
F
      35. Yet in another decision in Madhusudan Das v. Narayanibai
      [(1983) 1 SCC 35], this Court said: (SCC pp. 39-40, para 8):
        “8. …At this stage, it would be right to refer to the general
        principle that, in an appeal against a trial court decree, when
G       the appellate court considers an issue turning on oral evidence
        it must bear in mind that it does not enjoy the advantage which
        the trial court had in having the witnesses before it and of
        observing the manner in which they gave their testimony. When
        there is a conflict of oral evidence on any matter in issue and
        its resolution turns upon the credibility of the witnesses, the
H       general rule is that the appellate court should permit the findings
     V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                           393
                  [M. M. SUNDRESH, J. ]

          of fact rendered by the trial court to prevail unless it clearly        A
          appears that some special feature about the evidence of a
          particular witness has escaped the notice of the trial court or
          there is a sufficient balance of improbability to displace its
          opinion as to where the credibility lies. …The principle is one
          of practice and governs the weight to be given to a finding of
                                                                                  B
          fact by the trial court. There is, of course, no doubt that as
          a matter of law if the appraisal of the evidence by the trial
          court suffers from a material irregularity or is based on
          inadmissible evidence or on a misreading of the evidence
          or on conjectures and surmises the appellate court is
          entitled to interfere with the finding of fact.”                        C
                                                        (emphasis supplied)
       36. Three requisites should normally be present before an appellate
       court reverses a finding of the trial court:
              (i)     it applies its mind to reasons given by the trial court;
                                                                                  D
              (ii)    it has no advantage of seeing and hearing the
                      witnesses; and
              (iii)   it records cogent and convincing reasons for
                      disagreeing with the trial court.
       37. If the above principles are kept in mind, in our judgment, the         E
       decision of the High Court falls short of the grounds which would
       allow the first appellate court to reverse a finding of fact recorded
       by the trial court. As already adverted earlier, the High Court has
       ‘virtually’ reached a conclusion without recording reasons in
       support of such conclusion. When the court of original jurisdiction
       has considered oral evidence and recorded findings after seeing            F
       the demeanour of witnesses and having applied its mind, the
       appellate court is enjoined to keep that fact in mind. It has to deal
       with the reasons recorded and conclusions arrived at by the trial
       court. Thereafter, it is certainly open to the appellate court to
       come to its own conclusion if it finds that the reasons which              G
       weighed with the trial court or conclusions arrived at were not in
       consonance with law.”
      23. Thus, we have no hesitation in holding that though the first
appellate court is the final court of fact and law, it has to fall in line with
the scope and ambit of Section 96 of the Code.
                                                                                  H
394            SUPREME COURT REPORTS                          [2021] 11 S.C.R.


A           TESTAMENTARY COURT:
             24. A testamentary court is not a court of suspicion but that of
      conscience. It has to consider the relevant materials instead of adopting
      an ethical reasoning. A mere exclusion of either brother or sister per se
      would not create a suspicion unless it is surrounded by other circumstances
B     creating an inference. In a case where a testatrix is accompanied by the
      sister of the beneficiary of the Will and the said document is attested by
      the brother, there is no room for any suspicion when both of them have
      not raised any issue.
            ON FACTS
C             25. The Appellant has duly complied with the mandate of Section
      63 of the Indian Succession Act along with Section 68 of the Indian
      Evidence Act. PW2 being the brother of the Appellant and the other
      sister, Ms. Kantha Lakshmi were present at the time of execution of
      Exhibit P4. They have not raised any demur. Both the Courts found that
      Exhibit D1 is a forged and fabricated document. The alleged mortgage
D
      in favor of Respondent No.1 has not been proved. The Appellate Court,
      in our considered view, has unnecessarily created a suspicion when there
      is none. The Respondents have not denied the factum of the execution
      of Exhibit P4. The very fact that they made reliance upon Exhibit D1,
      which took note of Exhibit P4 as validly done, there is no need for any
E     suspicion on the part of the High Court. That too, when the Trial Court
      did not find any. Such a suspicion, as stated earlier, did not arise from
      either of the siblings of the Appellant who would otherwise be entitled to
      a share in the Suit Property. Their exclusion will not enure to the benefit
      of the Defendants who are bound by the recitals under Exhibit D1 and
      averments made in their written statement.
F
             26. The High Court has also committed an error in misconstruing
      the presence of the sister of the Appellant, Ms. Kantha Lakshmi. Her
      presence in fact adds strength to Exhibit P4 having been executed
      properly. It is the specific case of the Appellant, and perhaps PW2 and
      Ms. Kantha Lakshmi that the deceased, Ms. Jessie Jayalakshmi wanted
G     the property to be given in his favor. Their participation coupled with the
      subsequent conduct would be sufficient enough to uphold Exhibit P4.
      When there are no suspicious circumstances surrounding the execution
      of Exhibit P4, there is no need to remove.
            27. Both the Courts have given adequate reasoning for not believing
H     Exhibit D1. In the absence of pleadings to the contrary, followed by
     V. PRABHAKARA v. BASAVARAJ K. (DEAD) BY LR. & ANR.                         395
                  [M. M. SUNDRESH, J. ]

issues framed, it is not open to the Appellate Court to embark upon an          A
exercise which is not required and also not permitted under the law. We
have already held that the High Court did not give any reasoning
whatsoever for differing with the views expressed by the Trial Court.
       28. The decisions relied upon by the learned Senior Counsel
appearing for the Respondents do not have any application to the case           B
we are dealing with. It may be correct to state that the existence of
suspicious circumstances is one of fact. However, the approach of the
Court being contrary to law, we have no hesitation in holding that the
judgment and decree of the Appellate Court requires to be interfered
with. As stated, due execution of Exhibit P4 is accepted as against Exhibit
D1. Exhibit P4 also cannot be questioned by the Respondent No. 1 who            C
is none other than the erstwhile brother-in-law of the Appellant.
Respondent No. 1 & 2 merely rely upon Exhibit D1 which is rightly
found to be not genuine by both the Courts. We feel that the Appellate
Court has not considered the relevant materials and substituted its own
views when not warranted either on facts or law.                                D
        29. The High Court after giving adequate reasoning for disbelieving
Exhibit D1 that it is forged and fabricated should have kept in mind the
conduct and attitude of the Respondent No.1. The factors such as the
fabrication and severance of relationship between himself and his wife
in pursuance of the decree for divorce, coupled with the status while           E
squatting over the Suit Property being the relevant materials, ought to
have weighed in its mind instead of questioning Exhibit P4. Had that
been done, perhaps it would have come to conclusion that such an
exercise is not warranted at the hands of the Respondents, who not only
accepted Exhibit P4 but it did not even question it; except by contending
that it is replaced by Exhibit D1.                                              F

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


Divya Pandey                                                 Appeals allowed.

                                                                                H