TaxTMI 
TaxTMI 
2020 (4) TMI 907
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....ties Sri Sangappa son of Pampanna Shettar of Koppal; and that a trust created by the defendants on 28.05.1994, in the name "Shri Sangappa Pampanna Gadagshettar Trust, Koppal" in relation to the suit properties, was illegal, void and not binding on the plaintiffs. The contesting defendants i.e., defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while questioning the genuineness of the alleged 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 i....
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....fendant No. 1 Sri Sharanabasappa son of Pampanna is the younger brother of the testator; the defendant Nos. 2 and 3 Smt. Basavannemma and Smt. Siddama are the sisters of the testator; the defendant No. 4 Sri Pampanna son of Basappa and defendant No. 5 Sri Siddanna son of Fakirappa are the nephews of the testator.[1][2] 3.3.1. The defendant Nos. 6 to 8: The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappa and No. 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 ....
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....in the name of the testator's wife Mahantamma but were purchased by him. It was averred that on 20.05.1994, the testator Sangappa Shettar and his wife died in a car accident on the National Highway between Hubli-Shiggoan. It was also averred that both of them died issueless as the children born to them had died in infancy. The plaintiffs further pointed out the relations of the parties with the testator and alleged that the testator was earlier joint with his family but, in or around the year 1964, 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 pointe....
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.... party; and that the description of suit properties was not correct. 4.2.1. While stating that both Sri Sangappa and his wife died in the vehicular accident that took place at about 3:15 p.m. on 20.05.1994, these defendants stated that their dead bodies were identified after about 18 hours; and that the defendant Nos. 1 to 3 performed their last rites. The allegation regarding partition was denied. 4.2.2. The contesting defendants further denied the assertions that the plaintiffs were brought 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 deni....
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....out its genuineness after examining the same and after enquiring from the attesting witnesses; and he also found that the draft was in the handwriting of the deceased. This defendant also referred to the proceedings of the meeting of the trust on 10.06.1994, where a suggestion was made that the legatees under the Will should go and establish their claim in the Court of Law but he asserted that the Will should be given effect to as, according to him, litigating against the plaintiffs was equivalent 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 Sanga....
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....ian Succession Act, 1925[6] and the same was proved as per the requirements of Section 68 of the Indian Evidence Act, 1872[7]; and the plaintiffs got the rights as claimed thereunder. The relevant aspects of the findings of the Trial Court could be summarised as follows: 5.1. The Trial Court held that all the circumstances establishing that PW- 8 was handed over the cover containing the Will in question and its draft and of his opening the same before Swamiji on 29.05.1994 cannot be suspected as he had no personal gain from the plaintiffs and 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....
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....ications, he was staying in Warkar Galli C/o Sangappa Gadedshetter. Hence, the allegations of the defendants that the plaintiffs were staying separately were rejected. The Trial Court observed that even if father and mother of the plaintiffs were later on staying separately due to difference of opinion in women-fold, the fact remained that, prior to the year 1993, the plaintiffs and their parents were staying with the deceased as seen by the voter lists (Exs. P.12-16) of Koppal Town pertaining to years 1975 to 1993. 5.6. As regards the state of 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 p....
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....ara 3 of the Will, 4 acres of the land of Irkalgada was given to Gopur Basaveshwara Temple, which clearly showed that the deceased had given properties to charitable purposes also. 5.7.5. As regards entering of the names of the legatees in the Will by the deceased by filing an application to municipality on 04.09.1993 during his life time, the Trial Court observed that such entries were of no legal effect and do not operate against the Will in question. 5.7.6. As regards the question raised by the defendants that even the past events were stated 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 o....
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....ures of the deceased, as proved in the testimonies of the attesting witnesses. The Trial Court yet further observed that the Will was kept by the deceased in sealed cover and this was a strong circumstance to show that the execution of Will by the deceased cannot be suspected. 5.9. In its conclusion, the Trial Court held that from every angle, the Will in question was natural; and the plaintiffs had discharged their burden of proving the same and also dispelled the suspicious circumstances stated by the defendants. The Trial Court, accordingly, 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 fram....
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....colour (almost white) and the third sheet is darker among the three. At the outset, it is clear that all the three sheets are not from the same stock and if the same was got typed from a typist in a normal course as claimed, the sheets could not have been different from one another. The alleged signature of the testator is found at the bottom of each page on the facing side only. Though there is typed matter on the reverse side at pages 2 and 4 the same does not contain signatures. Even the signatures found on the facing sheet are not uniformly affixed. 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....
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....certainly indicate the unnatural circumstances that a person would be so careless while signing a document in the nature of a WILL which is fully known to him that it is a document regarding which he would not be available to explain the situation. One other reason for which the said explanation cannot be believed is that if the fountain ink pen used by the testator was really not working after affixing the signature on the first page, it cannot be understood as to how he could have signed the second sheet with the ballpoint pen and thereafter once again 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 presen....
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.... been affixed after the matter was typed and the explanation given by the witnesses are even more doubtful and as such the learned Judge could not have lightly brushed aside these aspects." 6.6. In view of the above, the High Court allowed the appeal and set aside the judgment and decree of the Trial Court. Hence, the unsuccessful plaintiffs have preferred this appeal. RIVAL CONTENTIONS 7. Assailing the judgement of the High Court, learned senior counsel for the plaintiff-appellants has strenuously argued that the High Court has seriously erred in 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 ....
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....rd, the learned counsel has relied upon the decision in Mahesh Kumar (dead) by LRs v. Vinod Kumar and Ors: (2012) 4 SCC 387. 7.3. In the last and in the alternative, the learned senior counsel has argued that if at all the High Court found the want of requisite evidence, the proper course was to exercise the power of remand under the provisions of Order XLI Rule 23-A CPC. The learned counsel has contended that the High Court being the first Court of Appeal, ought to have given the opportunity to the appellants to adduce proper additional evidence, 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 doc....
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....tator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c)The Will shall be attested by two or more witness, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, 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 agains....
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.... prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the 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....
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.... is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case 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 ....
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.... and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and 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 vi....
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.... the endorsement made by the Registrar showed that the testator was in a sound disposing state of mind and the Will was executed out of the testator's free will. It was also found that the testator died 8 years after registration of the Will and though legatee propounded the Will in his written statement, but no plea was taken by the opposite party to question the validity of the Will. The Will was duly proved with examination of the attesting witness. In the given circumstances, the fact that whole of the estate was given to one son under the Will while depriving two daughters, was not considered to 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 dut....
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....er to explain them to the satisfaction 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 of the 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 gran....
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....d categorically stated that he had signed as the witness after Shri Harishankar had signed the will, the portion of his statement extracted in the impugned judgment gives an impression that the witnesses had signed even before the executant had signed the will. 45. Another patent error committed by the learned Single Judge is that he decided the issue relating to validity of the will by assuming that both the attesting witnesses were required to append their signatures simultaneously. Section 63(c) of the 1925 Act does not contain any such requirement and it is settled law that examination of one of the attesting witnesses is sufficient. 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 Shr....
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....rving, inter alia, as under:- "28. It is however established in the present case that the issue of validity of the execution of both the deed of gift and deed of will was taken up by the respondent-plaintiff and specifically denied in the affidavits filed in respect of the injunction applications. The parties have also gone to trial knowing fully well that execution of both these documents is under challenge. Parties knowing fully the aforesaid factual position led their evidence also to establish the legality and validity of both the documents. In that view of the matter, it cannot be said that the said document should be deemed to be admitted by the plaintiff 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 suc....
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....ch pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.' 7. As 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 ci....
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....nd other dealings; (v) that the attesting witnesses were only the customers of the testator and were naturally chosen as independent persons to stand as witnesses to the Will; (vi) that the Will in question was in possession of PW-8 and was opened by him in the presence of Swamiji; and (vii) that PW-8 had neither any animosity with the defendants nor was gaining anything from the Will. 13.1 As regards the discrepancies indicated by the defendants, the Trial Court took the view that mere misdescription of the property was of no effect, particularly when its identification was not in doubt; and for this very reason, the Trial Court found the blank spaces as regards the particulars of the property to be of no effect. As 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 concerni....
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....k at the document in question. 15.2. The aforementioned two features, by themselves, may not be of material bearing but this much is clear that they stand at contradistinction to the ordinary course of dealings and give rise to legitimate suspicions about the genuineness of document. Now, the suspicion arising from the aforesaid two features is confounded by another factor that though the document carries 3 signatures of the testator, the same are not made from the same pen. It has been noticed, and again it remains indisputable, that while the signature of the testator at page number 1 are from an ink pen, that at page number 3 is from a ballpoint pen and then, again at page number 5, it is from an ink pen. The witness 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 p....
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....y the testator in the presence of the alleged attesting witnesses. 15.4.2. In relation to this aspect of want of signatures of the testator on page number 2 and page number 4, we may also observe that as per the requirement of clause (b) of Section 63 of the Succession Act, the signature or mark of the testator is to be so placed that it shall appear that by such signature or mark, the intention was to give effect to the writing as a Will. Of course, when no specific form of making a Will is provided, in a given case, depending on the relevant facts and circumstances, a document drawn on several sheets but carrying signature only at the end may also be accepted as a genuine Will where the document was authenticated by 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 doc....
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....ces; and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. In fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. Although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document. 16. While proceeding further, we may usefully reiterate the principles relating to the examination of a document 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 blan....
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....of the testator. The unexplained, unusual and abnormal features pertaining to the document only lead to the logical deduction that the document in question was prepared after the demise of the testator with use of blank signed papers that came in possession of the propounders and their associates. The High Court has stated such deduction after thorough examination of the material on record and, in our view, rightly so. It is noticed that all the features and factors indicated hereinabove are very much available on the face of the record. However, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular 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....
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....the deceased Sangappa has been cooked up with use of readily available signed papers (though of different sheets of paper and with signatures with different instruments) and, in order to suggest some authenticity, the story of sealed envelope and leaving of the same with PW-8 was sought to be inserted. This feature only operates against the plaintiffs where it carries another unexplained unusualness. 22. 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 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 sho....
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....to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. 24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, 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, wh....
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....t order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. 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. 25.4.1. The decision cited by the learned Counsel for the appellants 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....
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....y were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. 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. CONCLUSION 26. For what has been 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 th....