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2020 (4) TMI 907 - SC - Indian LawsBequeathing of properties by the deceased Sangappa under the will or not - genuineness of the Will - Whether the trial Court was justified in holding the will dated 20.5.1991 executed by Sangappa as genuine or not? - HELD THAT - The Will being a rather solemn document that comes into 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 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. 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 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 should be removed before the document in question is accepted as the last Will of the testator. 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 submissions so made on behalf of the appellants cannot be accepted for the reason that mere proof of the document in accordance with the requirements of Section 68 of the Evidence Act is not final and conclusive for acceptance of a document as a Will. When suspicious circumstances exist and the suspicions have not been removed, the document in question cannot be accepted as a Will. The Trial Court had largely been swayed by the fact that the deceased Sangappa was not inclined to give any property to the defendant No. 1 and his family as had been the case of the earlier Will executed by him in the year 1974. Admittedly, the said Will of the year 1974 was cancelled by Shri Sangappa on 26.09.1990. He perished in the vehicular accident on 20.05.1991. Whether he intended to bequeath any property to the defendants or not is hardly of any bearing in relation to the suspicious circumstances - the document in question falls flat at the very first question indicated in the case of H. Venkatachala Iyenger 1958 (11) TMI 46 - SUPREME COURT 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. 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? - Order XLI Rule 23A CPC - HELD THAT - The procedure relating to appeals from original decrees (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 - 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 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 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. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case - An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. 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 - The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and is, rejected. 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. Appeal dismissed.
Issues Involved:
1. Genuineness of the Will dated 20.05.1991. 2. Validity of the trust created on 28.05.1994. 3. Ownership rights over the suit properties. 4. Possession and injunction against interference by defendants. 5. Procedural aspects related to the trial and appeal. Issue-wise Detailed Analysis: 1. Genuineness of the Will dated 20.05.1991: The plaintiffs claimed ownership of the suit properties based on a Will executed by the testator, Sri Sangappa. The Trial Court found the Will genuine, citing compliance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The Will was allegedly handed over in a sealed cover to an advocate and opened in the presence of Swamiji after the testator's death. The High Court, however, identified several discrepancies and suspicious circumstances, including the use of different colored sheets, inconsistent signatures, and unexplained gaps between the typewritten content and signatures. The High Court concluded that the Will was not genuine, noting that the plaintiffs failed to remove legitimate suspicions surrounding its execution. 2. Validity of the Trust Created on 28.05.1994: The plaintiffs challenged the trust created by the defendants, asserting it was illegal and void. The Trial Court ruled in favor of the plaintiffs, stating the trust was not binding on them due to the Will. However, the High Court, upon finding the Will not genuine, implied that the trust's creation was not invalidated by the Will. 3. Ownership Rights Over the Suit Properties: The Trial Court declared the plaintiffs as owners of the suit properties based on the Will. This decision was reversed by the High Court, which found the Will not genuine. Consequently, the plaintiffs' claim to ownership based on the Will was not upheld. 4. Possession and Injunction Against Interference by Defendants: The Trial Court granted an injunction against the defendants, preventing them from interfering with the plaintiffs' possession of the suit properties. The High Court, while reversing the Trial Court's decision on the Will, left the question of possession open for the defendants to pursue appropriate legal remedies. 5. Procedural Aspects Related to the Trial and Appeal: The High Court meticulously examined the evidence and found the Trial Court's decision flawed due to its failure to address several suspicious circumstances surrounding the Will. The High Court did not find it necessary to remand the case for retrial, as the evidence on record was sufficient to pronounce judgment. The Supreme Court upheld the High Court's decision, emphasizing that the document in question could not be accepted as the last Will of the testator due to multiple unexplained and unusual features. Conclusion: The Supreme Court affirmed the High Court's judgment, dismissing the appeal and holding that the contested Will was not genuine. The Court also found no reason to remand the case for retrial, as the High Court had adequately addressed the issues based on the available evidence. The plaintiffs' claims based on the Will were thus rejected, and the trust created by the defendants was not invalidated by the Will.
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