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TMI Blog2003 (12) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... by the observations made on such claims in the orders set aside, as well as those made in this order. - Appeal (civil) 9726 of 2003, Special Leave Petition (civil) 9026 of 2002 - - - Dated:- 11-12-2003 - Doraiswamy Raju And Arijit Pasayat,JJ. JUDGMENT Leave granted. When crave for materialistic possessions outweighs personal love and affection, the inevitable result is passing long times in the corridors of Courts and the case at hand is no exception. In a proceeding initiated under Sections 192 to 195 of the Indian Succession Act 1925 (for short the Act ) validity and genuineness of a Will was decided by the District Court, Kozhikode and the Kerala High Court refused to interfere under Section 115 of the Code of Civil Procedure 1908 (for short the Code ), negativing appellants plea that such adjudication was not permissible in the said proceeding. The background in which the litigation has reached this Court is essentially as follows: The petitioner No.1 had initiated proceedings under Sections 192 to 195 of the Act, aggrieved by the action of the respondent in allegedly taking illegal possession of the petitioner s palatial ancestral home situate in the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above summary proceedings, wherein the jurisdiction of the lower court was invoked only for the settlement of the dispute regarding actual possession. The schedule property is the residential house and compound which belonged to deceased Sankunni. Sankunni had two daughters, the petitioner no.1 and her elder sister Rani Sidhan, wife of the original respondent Dr. T.C. Sidhan. After the death of Sankunni, the property devolved upon the petitioner no.1 and the wife of respondent Dr. T.C. Sidhan on equal rights. Petitioner no.1 was married to Dr. Rajan, the younger brother of respondent Dr. T.C. Sidhan and they were living together in England. Mrs. Rani Sidhan, the sister of the petitioner no.1 died issueless. Therefore, the petitioner no.1 contended that she is the legal heir of her sister Mrs. Rani Sidhan under Section 15(2)(a) of the Hindu Succession Act, 1956 (in short the Succession Act ). She alleged that the respondent Dr. T.C. Sidhan, who has absolutely no right in the schedule property, taking advantage of the position that he was the husband of Mrs. Rani Sidhan, illegally occupied the property, and that he was likely to commit waste and cause damage to the property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts at various stages and acceptance thereof by various courts including this Court that the issue whether the Will was genuine has to be adjudicated in an appropriate proceeding. The learned District Judge, himself has held so only a few months before. Even in the grounds before the High Court, it is specifically stated so. But the High Court overlooked all these salient features and rejected the revision application by holding that the jurisdiction was discretionary. There is no reason indicated to justify the conclusion as to why in a case of this nature, where substantial questions of law were involved interference was not warranted. After having observed that consent cannot confer jurisdiction, the High Court completely overlooked the various orders passed which had clearly directed that the genuineness of the Will was to be established in an appropriate proceeding. It was submitted that the fallacy in the conclusions of the District Judge as well as the High Court are apparent because the whole house was directed to be handed over to respondent Dr. T.C. Sidhan when admittedly even according to the respondent half share therein belongs to the appellant no.1. It was submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ietei vult (or velit) ; the word justa implying in each, that, in order to be valid, the testament must be made in compliance with the forms of law. It means, the legal declaration of a man s intentions, which will be performed after his death . A last Will and testament is defined to be the just sentence of our Will, touching what we would have done after our death . Every testament is consummated by death, and until he dies, the Will of a testator is ambulatory. Nam omne testamentum morte consummatum est; et voluntae testamentoric est embulatoria usque od mortem. (For, where a testament is, there must also of necessity be death of testator. For, a testament is of force after men are dead; otherwise it is of no strength at all while the testator liveth). A Will , says Jarman, is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life . (Jarman, on Wills, Ist Edn., p.11). This ambulatory character of a Will has been often pointed out as its prominent characteristic, distinguishing it, in fact, from ordinary disposition by a living person s deed, which might, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (5) To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will. In Kalvelikkal Ambunhi v. H. Ganesh Bhandary (AIR 1995 SC 2491), it was observed that a Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testator has to be gathered not only by attaching importance to isolated expressions but by reading the Will as a whole with all the provisions and ignoring none of them as redundant or contradictory. As observed in Navneet Lal s case (Supra), although there is no binding rule that the Court should avoid intestacy at any cost, yet the Court would be justified in preferring that construction of the Will which avoids intestacy. Where the words are ambiguous attempt should be made to avoid that construction which leads to intestacy. It is seldom profitable to compare the words of one Will with those of another or to attempt to find out to which of the Wills, upon which decisions have been given in reported cases, the Will before the Court approximates closely. Cases are helpful only in so far as the purport to lay down certain general principles of construction and at the present these principles seem to be fairy well settled. The cardinal maxim to be observed by Courts in construing a Will is to endeavour to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as whole without indulging in any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the court 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 ofthe court. The suspicious 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 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 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 unnat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (66 Ind. Cases 76). A person aggrieved by an order passed in a summary proceeding under Part VII, should seek remedy by a suit and not by an application for revision. This remedy is preserved by this Section. (See Gouri Shankar v. Debi Prasad (AIR 1929 Nag. 317). The suit should be a suit for possession by establishment of title (See Bhoba Tarani v. Profulla (140 Ind. Cas.379). Therefore, it should necessarily be by the person who need to establish his title to claim any such possession on the basis of title. By analogy to Order XXI, Rule 63, it can be said that where an adverse order has been passed against the plaintiff, under Section 194 of the Act, the onus lies heavily on the plaintiff to show that he has a right which has been demised by the decision under Section 194 [See Dhirendra v. Indra Chandra (AIR 1939 Calcutta 571); Mahammad Ali v. Bismilla Begam (AIR 1930 P.C. 255); Sahadi v. Usman Ali (184 Ind.Cas. 113); Ahmad v. Partap (AIR 1939 Lahore 438); Md. Ismail v. Hanuman (AIR 1939 P.C. 290); Bavamma v. Papanna (AIR 1936 Madras 971). Coming to the scope and ambit of Sections 192, 193, 194 and 195 it is to be noted that they form a part of Chapter XIII dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of settling the actual possession, but for this purpose it shall be final and shall not be subject to any appeal or review. But where instead of a summary disposal, there is in depth analysis of the evidence and conclusive conclusions/decisions arrived at it cannot be said that there has been a proper exercise of the power conferred while dealing with an application under Section 192 of the Act. In the case at hand by several orders/judgments on earlier occasions/stages it has been specifically held that the genuiness of the Will has to be established in a regular suit. While dealing with an application under Section 192 of the Act, obviously there has to be some consideration of the genuineness of the Will. But it cannot be in a conclusive and detailed manner as has been done in this case. Further, when admittedly half of the share in the property indisputably belonged to appellant No.1, the District Judge while dealing with an application under Section 192 could not have either ventured to undertake even a summary decision of a disputed title of the respondent or even delivered possession of the whole property to original respondent no.1 in preference to the person whose tit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty accorded by statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent judges in somewhat different forms of words but with substantial identity. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (Per Willes J. in Lee v Budge Railway Co., (1871) LR 6 CP 576, and in Morgan v. Morgan, 1869, LR 1 P M 644). The principles relating to exercise of discretion judicially do not appear to have been kept in view by the High Court in this case. The inevitable result, therefore, is that the order of the High Court ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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