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TMI Blog2020 (4) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Will dated 20.05.1991. The defendant No. 7, one of the erstwhile trustees of the said trust, however, admitted and endorsed the claim of the plaintiffs. 1.2. After framing necessary issues and after taking the oral and documentary evidence adduced by the parties, the Trial Court, in its judgment dated 12.09.2001, decided the principal issue relating to the said Will dated 20.05.1991 in favour of the plaintiffs and, while also returning its findings on other necessary issues in favour of the plaintiffs, proceeded to decree the suit with declaration that the trust created by the defendants on 28.05.1994 was not binding on the plaintiffs, particularly in relation to the suit properties; and that the plaintiffs were owners of the suit properties as claimed. The Trial Court also issued injunction against defendant Nos. 1 to 5 that they shall not interfere with the plaintiffs peaceful possession and enjoyment of the suit properties. 1.3. The judgment and decree so passed by the Trial Court were questioned by the contesting defendants in the High Court by way of the said first appeal. The High Court, in its impugned judgment dated 26.10.2007 proceeded to allow the appeal while rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Dr. N.S.Gaikwad were joined in the suit for being the members of the trust created by other defendants, which was questioned by the plaintiffs. The defendant No. 7 Sri Veerabasappa was said to be a close associate of the testator in running Gavisiddeshwar College of which, the testator was the Chairman of Governing Body. This defendant was not related to either of the parties; he, however, filed a separate written statement, admitting and endorsing the claim of the plaintiffs. [3] 3.4. The trust in question: Sri Sangappa Pampanna Gadagshettar Trust: The defendants created this trust on 28.05.1994 (in the name of the testator) with inclusion of the properties in question, to pursue philanthropic and charitable purposes. The creation of this trust was challenged in the suit. 3.5. Special mention: Sri Gavisiddeshwara Swami, Koppal (Swamiji): According to the plaintiffs, the testator was a philanthropic and a devotee of Sri Gavisiddeshwara Swami, Koppal [4] ; and the contested Will was opened in the presence of Swamiji. However, Swamiji was not examined as a witness in this case. 3.6. The key witnesses: PW-1 Sri Basetteppa: He is father of the plaintiff Nos. 1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, a partition took place and thereafter, he remained separate until his demise. The plaintiffs asserted that their mother Mahadevamma was the sister of the wife of testator; that the testator Sri Sangappa, out of love and affection, brought up the plaintiffs by keeping them in his house; that the marriage of the plaintiffs father (PW-1) was performed by the testator in the year 1972; and that the deceased testator also requested the father of the plaintiffs to assist him in the business. The plaintiffs further averred that the deceased testator executed a Will in the year 1974 but, being disillusioned by the behaviour of legatees, he cancelled the same on 26.09.1990. The plaintiffs pointed out that the deceased testator was the Chairman of Sri Gavisiddeshwara V.V. Trust, Koppal and ardent devotee of Sri Gavisiddeshwara Swamiji of Koppal. The plaintiffs also averred that the deceased testator changed the name of the business from Gurukrupa Stores to Gurukrupa Traders. 4.1.1. The plaintiffs further averred that on 20.05.1991, the testator Sri Sangappa Shettar executed a Will bequeathing Schedule A properties in favour of the plaintiffs jointly; Schedule B property in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought up by Sangappa and maintained that the plaintiffs were living with their father and mother in a rented house. The contesting defendants alleged that the relations between the deceased and the father of the plaintiffs were strained; and that father of the plaintiffs was, in fact, running the business in the name of Sri Karibasavashwar Trading Co. opposite to the place of business of the deceased Sangappa that was running in the name of Gurukrupa Traders. 4.2.3. While questioning the Will propounded by the plaintiffs, the contesting defendants alleged that the plaintiffs are interested in the properties of the deceased and had forged the Will with ulterior motives. These defendants denied that the deceased prepared the Will and kept the same in the sealed cover and deposited it to the Advocate with instruction to open the same in the presence of Swamiji. The contesting defendants recounted various suspicious circumstances concerning the Will in question while alleging, inter alia, that the Will did not bear the signature of deceased Sangappa; that there was a mismatch in Hindi Calendar date with that of English Calendar; that the past events were stated in the Will in such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivalent to asserting a false case that the deceased had not executed his Will and therefore, he disassociated himself from the trust. Issues 4.4. On the pleadings of the parties, the Trial Court framed the following issues for determination of the questions involved in the matter:- 1.Whether the plaintiffs prove that the deceased Sangappa bequeathed the suit properties in their favour under the will deed dt: 20.05.1991? 2. Whether the defendants 1 to 5 prove that the Commission Agency shop business was kept joint in the partition of 1954, held during the life time of father of deceased Sangappa? 3. Whether the suit is not maintainable for not impleading Sri Sangappa Pamapnna Gadadshettar Trust, Koppal, as a party to the suit? 4. Whether the suit is not properly valued and court fee paid is not correct? 5. Whether the plaintiffs are entitled for the relief of declaration that the trust created under the name Sri Sangappa Pampanna Gandshettar Trust, Koppal, is illegal, void and not binding on them? 6. Whether the plaintiffs 1 to 3 are entitled for the relief of declaration that they are the joint owners of suit A schedule properties? 7. Whether the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no enmity with the defendants. 5.2. The Trial Court further held that PW-3 and PW-4 have given the details about the Will but it was not necessary that they would meticulously know the contents of the Will; that both have unanimously spoken about the deceased Sangappa having shown them the typed Will, himself having read out the contents, and having signed before them. The Trial Court yet further observed that neither the Will was drafted nor it was got typed in the presence of the attesting witnesses and everything was ready for execution and therefore, any more details regarding typing of Will of the deceased were not expected. The Trial Court found that the Will in question was duly identified by the said witnesses as Ex. P. 4 and the signatures of Sangappa were also identified as Ex. P. 4 (a), (b) and (c); the signature of PW-3 was at Ex. P.4 (d) and that of PW-4 at Ex. P. 4 (f). The signatures of other two witnesses were also identified as Ex. P. 4 (e) and Ex. P. 4 (g). Thus, according to the Trial Court, the mode of proof as provided under Section 68 of the Evidence Act stood duly complied with. 5.3. The Trial Court also noticed and recounted various features which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f mind of the deceased, the Trial Court observed that the deceased was in sound state of mind at the time of execution of Will; and he died 3 years after making of Will and, on the day of his demise, had gone to attend the marriage 100 kms away, which showed that he was capable of managing himself. The Trial Court also observed that some of the discrepancies indicated by the defendants had essentially arisen because of self-scribing of the Will and it cannot be said that the deceased was a feeble person. Discrepancies/S uspicions Answered by the Trial Cour t: 5.7. The Trial Court also proceeded to deal with some of the discrepancies pointed out by the defendants in the Will in question and answered the same as follows: 5.7.1. The Trial Court observed that the discrepancy in Hindi and English Calendar dates as found in Ex. P.3 cannot be made a ground to disbelieve the entire Will, particularly when the date mentioned in the Will i.e., 20.05.1991 was falling on Monday and the same had been the statements of PW-3 and PW-4. This discrepancy, according to the Trial Court was of no bearing on the substance of the matter. 5.7.2. The Trial Court further observed that absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated in the Will as if to happen in future, the Trial Court observed that in para 4 of the Will, the deceased had stated that Sangappa Uttangi had promised to vacate the shop and godown in the year 1990 and though the wording should have been different when the Will was written in the month of May 1991, but such a fact was irrelevant because Uttangi was a tenant and even if he had continued, that would not have affected the rights of legatees under the Will. 5.8. In relation to the suspicious features pertaining to the documents in question i.e., the draft of the Will Ex. P.3 and the deed of Will Ex. P.4, the Trial Court observed that only the strong suspicious circumstances were required to be explained by the propounder of the Will; and proceeded to dismiss the suspicions suggested by the defendants, with the observations and findings, inter alia, as follows : 5.8.1. The Trial Court observed that the loose sheets were removed from the exercise note book and used by the deceased to write the draft but, there was no evidence to show that the entire draft was made on one day; and the deceased might have written some pages on some day and some pages on some other day. After no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , held that overall reading of the Will indicated that the deceased had written the same with an intention of bequeathing the properties to the legatees. Issue Nos. 1 and 6 to 10 were, therefore, decided in favour of the plaintiffs. 5.10. The Trial Court also returned the findings on other issues in favour of the plaintiffs and, accordingly, decreed the suit with declaration and injunction as noticed hereinbefore. REVERSAL BY THE HIGH COURT 6. In appeal by the contesting respondents against the judgment and decree so passed by the Trial Court, the High Court took note of the material on record as also the rival contentions and framed two points for determination as follows: i) Whether the plaintiffs proved that the deceased Sangappa bequeathed his properties in their favour under the will dated 20.5.1991? ii) Whether the trial Court was justified in holding the will dated 20.5.1991 executed by Sangappa as genuine or not? 6.1. In relation to both the points aforesaid, which essentially revolved around the question of genuineness of the Will in question, the High Court took note of the principles exposited by this Court in the cases of Smt. Indu Bala Bose an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On first page the signature is more than one inch below the last line of the typed matter and has the appearance of a prefixed signature. The second sheet (page- 3) contains signature near to the typed matter. The last sheet (page 5) has the signature which is at a distance of about an inch below the last line of the typed matter. The name of the alleged testator typed below the signature has all indications of the same being typed below an existing signature. This is evident from the fact that the name would not have been typed so low from the typed matter, particularly when the place Koppal and date typed on the left side of the sheet is at a lesser distance from the typed matter and are not in alignment with each other. The space provided for signature of four witnesses seems very unnatural and even in that circumstance the name of the alleged testator would not have been typed so low if it was a natural typing on a blank sheet. The first page and last page have been signed using fountain ink pen but the pen used is not similar to one another. The second sheet is signed by a ballpoint pen . The pattern of signatures if compared with the earlier admitted WILL dated 29.6.1990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sign the third sheet with the fountain ink pen more so, when the ink pen used in the first sheet and the third sheet are not similar to one another . That apart the signatures of the so called attesting witnesses to the WILL would indicate that the same have been made with fountain ink pen and the said ink of these signatures are much fresher than the signatures of the alleged testator .. (emphasis supplied) 6.4. The High Court also rejected the contentions of the plaintiffs that the alleged discrepancies could not take away the validity of the Will as it was produced by PW-8 and the sealed envelope was opened in the presence of Swamiji. The High Court pointed out that the very assertion, about availability of the handwritten draft of the proposed Will EX. P.3 in the sealed envelope along with the alleged executed Will EX. P.4, was that of another unnatural feature because if the testator had himself completed and executed the Will in the presence of witnesses, there was no reason to place the incomplete handwritten draft in the envelope. The High Court proceeded to observe that such feature gave strong indication that the plaintiffs had been able to place their hands on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n setting aside the findings of the Trial Court, which were based on due appreciation of the consistent evidence of the material witnesses. The learned counsel has contended that the facts are amply established on record that on 20.05.1991, the testator executed the Will in question in accordance with the provisions of Section 63 of the Succession Act and Section 68 of the Evidence Act with his signatures and with attestation by more than two witnesses who had seen the testator signing the Will. According to the learned counsel, the testator was in sound and disposing state of mind while voluntarily executing the Will, as required by Section 59 of Indian Succession Act. PW-3 and PW-4 deposed before the Trial Court that the testator himself showed the typed Will and put his signatures on the same; and the Will was duly attested by PW-3 and PW-4. Hence, the requirements of Section 68 of the Evidence Act are fulfilled. The learned counsel has referred to the decision in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors: AIR 1959 SC 443 and has contended that with all the legal requirements being fulfilled and there being no reason to ignore or disbelieve the Will, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, considering the fact that the findings were being made on suspicious circumstances other than those raised by the defendants in their pleadings and evidence. The learned counsel has referred to and relied upon the decision in the case of Mohan Kumar v. State of Madhya Pradesh and Ors.: (2017) 4 SCC 92. 8. Per contra, learned counsel for the contesting respondents has duly supported the judgement of the High Court with reference to the reasonings and observations therein. The learned counsel has also argued that right from the beginning, it had been the case of the respondents that the propounded Will was nothing but a fabricated document and it is incorrect to say that particular objection had not been taken by the respondents. The learned counsel has referred to the decision in K. Laxmanan v. Thekkayil Padmini and Ors.: (2009) 1 SCC 354. POINTS FOR DETERMINATION 9. In view of the submissions made, the following points essentially arise for determination in this case: 1. As to whether the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document? 2. As to whether the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 10.2. Elaborate provisions have been made in Chapter VI of the Succession Act, in Sections 74 to 111, for construction of Wills which, in their sum and substance, make the intention of legislature clear that any 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. 10.3. As noticed, as per Section 63 of the Succession Act, inter alia, requires that the Will ought to be attested by two or more witnesses. Hence, any document propounded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression a person of sound mind in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator . It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson:(1946) 50 C.W.N. 895, where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth . It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. (emphasis supplied) 10.5. Learned Counsel for the appellant has referred to paragraphs 7 and 8 of the decision of this Court in the case of Indu Bala Bose (supra) which may also be taken note of as under: 7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surroundi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be a suspicious circumstance. On the requisite approach, this Court said as under:- 5. Under these circumstances, the suspicion which excited the mind of the District Munsif is without any basis and he picked them from his hat without fact-foundation. The Subordinate Judge had rightly considered all the circumstances and upheld the will. The High Court, without examining the evidence, by merely extracting legal position set out by various decisions of this Court has upset the finding of the fact recorded by the Subordinate Judge in one sentence. It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind. (emphasis supplied) 10.7. In the case of Uma Devi Nambiar (supra), this Court reviewed the case law dealing with the Will to a large extent and, while referring to the Constitution Bench decision of this Court in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964 SC 529 , observed that merely because the natural heirs have either been excluded or lesser share had been gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unnatural and might cut off wholly or in part near relations. 16. A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient. Not only this, while recording an adverse finding on this issue, the learned Single Judge omitted to consider the categorical statements made by DW 3 and DW 4 that the testator had read out and signed the will in their presence and thereafter they had appended their signatures. 46. The other reasons enumerated by the learned Single Judge for holding that the execution of will was highly suspicious are based on mere surmises/conjectures. The observation of the learned Single Judge that the possibility of obtaining signatures of Shri Harishankar and attesting witnesses on blank paper and preparation of the draft by Shri S.K. Agarwal, Advocate on pre-signed papers does not find even a semblance of support from the pleadings and evidence of the parties. If Respondent 1 wanted to show that the will was drafted by the advocate after Shri Harishankar and attesting witnesses had signed blank papers, he could have examined or at least summoned Shri S.K. Agarwal, Advocate, who had represented him before the Board of Revenue. .. 10.9. In the case of K. Laxmanan (supra), this Court, with reference to the settled principles including those in the case of Shashi Kumar Banerjee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff as no replication was filed by the plaintiff. (emphasis supplied) 10.10. We may also usefully refer to the principles enunciated in the case of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, which were duly taken note of by the High Court in its impugned judgement, as follows: 9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. (emphasis supplied) 11. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows: 1. Ordinarily, a Will ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether any particular feature or a set of features qualify as suspicious would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards mentioning of a past event as something to happen in future, the Trial Court found that it had no adverse bearing on the validity of the Will because existence of a tenant in the property was not going to affect the rights of the testator as also his legatees. As regards the statement in the Will about likelihood of accident, the Trial Court observed that the reason for making such a recital was known to the testator alone. On the suspicious factors concerning the document itself, the Trial Court observed that use of the sheets of paper of different colours could be attributed only to the typist who was not known to propounders. The Trial Court further found that the inconsistency regarding the dates from the Hindi Calendar and English Calendar were of no effect because the day of execution of the Will was Monday, as stated by the witnesses. Further, the Trial Court found that the making of signatures by the testator by different pens on different pages was duly explained by the witness PW-4. 14. The High Court, on the other hand, felt dissatisfied with the document itself and found no explanation on record about numerous unnatural circumstances dilated upon and discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss PW-4 has attempted to say that for the ink pen being not working properly, ballpoint pen was used. It sounds utterly unnatural and remains inexplicable that if the ink pen was not working and the second signature was made from a ballpoint pen, as to how and why the third signature, that is, the last one, was again made from another ink pen? It had not been the explanation of the attesting witnesses that after making the signature at page number 3, the ballpoint pen also stopped working and, therefore, another ink pen was used for making the third signature. We may observe that even when the possibility of the testator using different pens or instruments for his signatures on different pages of the same document is not ruled out altogether and even this fact, by itself, may not be decisive of the matter but, this much is certain that such happening cannot be categorised as normal or natural in the course of execution of a document of Will. 15.3 Therefore, in the present case, three features of the document Ex. P.4, carrying unusual characteristics of their own, manifest themselves on the face of the record and nothing but a bare look at the document is sufficient to notice the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only one signature. However, the scenario like the present one, where the executant had purportedly signed 3 out 5 typewritten pages while omitting to sign the other 2, definitely stands at contradistinction to the dealing of any normal person in normal way. When the signatures of the testator are indeed available on page numbers 1, 3 and 5, it is difficult to find any plausible explanation for his omission to sign at page number 2 and page number 4 of the same document. The only explanation could be that the testator chose to sign the front face of each paper and did not consider it necessary to sign on the backside of the paper. However, accepting such a frail explanation, and that too in the face of other unusual features (as noticed hereinbefore), would tantamount to thrusting the probative value into the document while ignoring everything that is incongruous to, and incompatible with, the normal course of happenings. 15.4.3. The indisputable fact that page number 2 and page number 4 of the document in question (EX. P.4) do not carry the signatures of the testator whereas other pages do carry his signatures, in our view, places the document in conflict with, or at least non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent propounded as Will that the document is not approached with doubts but is examined cautiously and with circumspection. For what has been noticed hereinabove, the document in question carries several such features of unusualness which travel into the realm of abnormalities. The matter does not rest with such abnormalities only. These abnormal features get confounded with other unusual features available in the contents of this document. Indisputably, several blank spaces are found in relation to the particulars of the properties and even some of the properties are not correctly described. Yet further, the dates mentioned in the document with reference to Hindi Calendar and English Calendar do not match. Yet another curious feature is the recital in the document of a past event (about vacating of the shop by the tenant in the year 1990) in the manner that such event shall happen in future. Therefore, the abnormalities relating to paper, pen and signature get magnified with blank spaces in the document as also with incorrect and inexplicable recitals. 17. The problems relating to the probative value of the document Ex. P.4 do not end with the aforementioned abnormal features an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. The Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approved. 19.1. It is sought to be contented on behalf of the appellants that using of blank papers had not been the objection taken by the defendants. The contention remains bereft of substance for the simple reason that the defendants indeed asserted that the document in question was a fabricated one. The likelihood of it being drawn on the available blank papers with signatures of the testator is nothing but a deduction that logically comes out of the examination of the document in question. 20. Much emphasis is laid on behalf of the appellants on the submissions that execution of the Will in accordance with the requirements of Section 63 of the Succession Act and Section 68 of the Evidence Act has been duly established on record with the testimony of the attesting witnesses as also the witness with whom the Will along with the handwritten draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He perished in the vehicular accident on 20.05.1991. Whether he intended to bequeath any property to the defendants or not is hardly of any bearing in relation to the suspicious circumstances noticed above. 23. Having dilated on various major features which, individually and cumulatively, lead only to the conclusion that the document in question cannot be accepted to be the last Will of late Shri Sangappa, it does not appear necessary to discuss several other shortcomings in the case of the plaintiffs, including various other factors like that the plaintiffs never took steps to get the statement of the said Swamiji recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened. 24. In our view, the document in question falls flat at the very first question indicated in the case of H. Venkatachala Iyenger (supra) that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. This is apart from the fact that the document in question, propounded as a Will, is non-compliant with the requirements of clause (b) of Section 63 of the Succession Act. 24.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from .-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time. 25.2. Rule 23A came to be inserted in Order XLI CPC by way of the Code of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was generally accepted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. Such part of the decree of the Trial Court was not challenged by the defendants but as against the part of the decision of the Trial Court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the appellant but proceeded to dismiss the entire suit with the finding that the plaintiff-appellant had failed to prove his ownership over the suit la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en discussed hereinabove, we are satisfied that the High Court has rightly interfered with the decision of the Trial Court and has rightly held that the document in question cannot be accepted as the genuine Will of the deceased Sangappa; and there was no reason for the High Court to remand the case to the Trial Court. 27. Accordingly, and in view of the above, this appeal fails and is, therefore, dismissed while leaving the parties to bear their own costs throughout. [1] 1The defendant No. 2 Smt. Basavannemma expired during the pendency of the suit and the fact was noted on the cause-title. [2] The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired during the pendency of this appeal and his legal representatives were brought on record by the order dated 30.03.2015. [3] The defendant No. 6 Gurushantappa expired on 13.10.2001. He was a trustee of the trust in question and no substitution was made in his place. The name of defendant No. 7 Veerabasappa was deleted from the array of parties before the High Court on 24.07.2006. The defendant No. 8 has remained on record as respondent No. 5 in this appeal. [4] Hereinafter also referr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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