IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9282 OF 2010
REPORTABLE
LEELA RAJAGOPAL & ORS. … APPELLANT (S)
VERSUS
KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)
WITH
CIVIL APPEAL NO. 9286 OF 2010
CIVIL APPEAL NO. 7004 OF 2012
RANJAN GOGOI, J.
J U D G M E N T
1. All the three appeals being directed against the
common judgment and order of the High Court dated
18.08.2009 were heard analogously and are being disposed of
by this order.
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2. In the present appeals, which challenge a judgment of
reversal passed by a Division Bench of the High Court of
Madras, determination of what is essentially a question of fact
confronts this Court exercising its jurisdiction under Article
136 of the Constitution. The said question is with regard to
the validity and legality of a Will dated 11.1.1982 executed by
one K.P. Janaki Amma, the mother of the appellants and the
first respondent. The learned Trial Judge by his order dated
23.01.2001 dismissed the probate proceedings instituted by
the first respondent (later converted into a Suit being T.O.S.
No. 16 of 1994) by holding that the execution of the Will
dated 11.1.1982 is surrounded by a host of suspicious
circumstances rendering the same legally unacceptable. The
aforesaid view of the learned Trial Judge of the High Court
having been overturned by the Division Bench of the High
Court by impugned order dated 18.08.2009, the present
appeals have been filed.
3. We have heard Mr. Krishnan Venugopal and Mr. Dhruv
Mehta, learned senior counsels as well as Mr. T. Harish Kumar
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learned counsel for the appellants and Mr. Vijay Hansaria,
learned senior counsel appearing for respondent No. 1.
4. Testator Late Janaki Amma had initially executed a Will
dated 28.12.1981 bequeathing house property bearing No. 8,
Malony Road, T. Nagar, Madras-17 in favour of the first
respondent Kamala Menon Cochran and her grand-daughter
Geetha (daughter of her predeceased daughter Leela). The
said Will, inter alia, contained a recital that the testator had 4
sons. In the Will dated 28.12.1981 the testator had
acknowledged that her sons are all well settled in life and had
properties purchased in their names during the life time of
their father. The testator had further stated that she had
suffered extreme bereavement on the death of her daughter
Leela which occurred on 02.02.1975 and therefore out of the
deep attachment for her grand-daughter, Geetha, and also as
her second daughter K.P. Kamala Menon i.e. respondent No. 1
aged 46 years who is a Principal in a College and a spinster
she is bequeathing the house property in favour of her grand-
daughter and her daughter to the exclusion of her sons. The
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said Will dated 28.12.1981 was superseded/revoked by a
subsequent Will dated 11.1.1982 which contained similar
recitals as in the first Will dated 28.12.1981 except for the
fact that instead of 4 sons the testator mentioned that she
had 5 living sons. After the death of Janaki Amma which
occurred on 27.04.1991 the respondent No. 1 had instituted a
probate proceedings which was later converted into a suit, as
the Will was disputed by the sons of the deceased.
5. The appellants who were the defendants in the suit and
respondents before the High Court had contested the legal
validity of the Will dated 11.1.1982 by asserting that the same
was not a valid instrument of conveyance executed on the
free volition of the testator; rather it was dictated at the
instance of the first respondent-daughter who had exercised
undue influence and coercion on the testator. To substantiate
the contentions advanced, the contesting defendants had led
evidence to show that the Will was executed in circumstances
which give rise to serious doubts, with regard to its voluntary
execution by the testator.
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6. The learned Trial Court on a consideration of the cases of
the parties and the evidence and materials adduced took note
of the following circumstances surrounding the execution of
the Will :
(i) No specific reason was disclosed as to why
the sons i.e. the present appellants had been
excluded from the Will;
(ii) At the time of execution of the Will the
respondent No. 1 had come down from
Tirupathi where she was working as a college
teacher/Principal to Madras and was staying
with the mother i.e. the testator;
(iii) Only a fortnight earlier to the execution of
the Will i.e. on 10.12.1981 the testator had
written a letter (Ex. P8) to one of her sons
Thangamani (Predecessor-in-interest of
appellants in C.A. No. 9282 of 2010)
expressing her intention to partition the
house property, which was the subject matter
of Will, equally among all the children;
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(iv) Non-production of the original copy of the
Will;
(v) The discrepancy in the evidence of the
witnesses of the plaintiff with regard to the
place of execution of the Will; and
(vi) The prominent part played by the plaintiff
(respondent No. 1 herein) in the registration
of the Will.
These circumstances, according to the learned Trial
Court, were suspicious enough to justify a conclusion that the
Will ought not to be accepted as a valid instrument executed
on the free will and volition of the testator.
7. In appeal, the High Court, on consideration of the
grounds and reasons which had persuaded the learned Trial
Court to take the above view, thought it proper to disagree
with the same and reverse the consequential findings. It may
be noticed, at this stage, that in its very elaborate order the
High Court had gone into each of the circumstances
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mentioned above; the evidence in support thereof as adduced
by the parties and the arguments advanced before reversing
the findings of the learned Trial Court.
8. Learned counsels for the appellants, in all the three
appeals before us, submitted that between 11.1.1982 i.e.
alleged date of execution of the Will and 27.4.1991 i.e. date of
death of the testator, the beneficiaries under the Will had not
informed anybody about the existence of the Will which
according to the learned counsel is unnatural. Pointing out
the evidence with regard to the place of execution of the Will,
learned counsel have contended that there is an apparent
inconsistency in this regard inasmuch as while in the
verification submitted alongwith the probate petition as
required under Sections 281 and 282 of the Indian Succession
Act, 1925 PW-3 had claimed that the Will was executed in the
house of the testator, in her evidence, PW-3, had stated that
the same was executed in the office of the Sub-Registrar.
However, PW-4, the Sub-Registrar who was examined did not
categorically depose about the place where the Will was
executed. Reference has been made by the learned counsels
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for the appellants to other suspicious circumstances,
enumerated hereinabove, to contend that the same are
sufficient and adequate to justify rejection of the Will in
question. Specifically, it was argued that no explanation has
been offered for non-production of the original Will and the
High Court has accepted the story of loss of the Will on the
mere statement of the first respondent. On the said basis it
is contended that the first respondent, as the Plaintiff, could
not have led secondary evidence in support of the Will in the
absence of clear and convincing proof of the loss of the
original Will. Bringing in a different set of attesting witnesses
in place of the witnesses who had attested the execution of
the first Will dated 28.12.1981; the non-examination of the
attesting witness Seetha Padmanabhan and the examination
of the second witness (PW-3) Jaya Lakshmi who was a
colleague of the plaintiff are other circumstances which the
learned counsel for the appellants contends to be highly
suspicious. The absence of any evidence to show the lack of
cordial relationship between the testator and her sons and the
fact that defendant No. 4 i.e. one of the sons was actually
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looking after the mother has also been stressed upon to point
out that there was no reason to exclude the sons under the
Will. In fact, learned counsels for the appellants have pointed
out that PW-2 and PW-3 had clearly and categorically stated
that the relationship between the testator and her sons was
good. It is further argued that the letter dated 10.12.1981
(Ex. P8) of the mother to one of the sons, properly read,
indicates a very cordial relationship and the purport thereof
has been thoroughly misinterpreted by the High Court to
come to the impugned findings and conclusions. The lack of
knowledge of English on the part of the testator has also been
cited as another circumstance to justify its rejection. Reliance
has been placed on behalf of the appellants on the decision of
this Court in H. Venkatachala Iyengar Vs. B.N.
Thimmajamma and Others
1
as well as on a more recent
pronouncement in Bharpur Singh and Others Vs.
Shamsher Singh
2
to contend that active participation of the
first respondent in execution and registration of the Will ought
to be viewed by us as raising serious doubts with regard to
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2
1959 Supp (1) SCR 426
2009(3) SCC 687
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the voluntary execution of the Will by the testator. Two other
decisions of this Court in Rani Pnrnima Debi and Another
Vs. Kumar Khagendra Narayan Deb and Another
Apoline D’souza Vs. John D’souza
4
3
and
have also been placed
to contend that the absence of any evidence to show that the
Will was read over and explained to the testator, in view of
her lack of knowledge of English, would be crucial for
determination of the authenticity of the Will in question.
9. Opposing the arguments advanced on behalf of the
appellants, Shri Vijay Hansaria, learned senior counsel
appearing for respondent No. 1 has argued that the
acceptance or rejection of the Will, in the ultimate analysis
would depend on the satisfaction of the judicial conscience of
the Court with regard to its due execution. Shri Hansaria has
submitted that no single circumstance would be
determinative of the question and it is the cumulative effect
thereof which would be vital to the adjudication required to be
made by the Court. The mere participation of the first
respondent in the execution and registration of the Will; her
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4
(1962) 3 SCR 195
2007 (7) SCC 225
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presence in Madras at the time of execution of the Will will in
no way affect the validity thereof, it is contended. Insofar as
the discrepancy in the place of execution of the Will is
concerned, Shri Hansaria has pointed out that the verification
filed alongwith the application for probate was in the standard
form prescribed by the Original Side Rules of the High Court of
Judicature at Madras (Form No. 55 which mentions the place
of execution as the House of …….). Insofar as the loss of the
original Will is concerned it is submitted that the same was in
custody of the testator and was found to be missing only after
her death. It is in these circumstances that the probate
proceedings were instituted on the basis of the certified copy
of the Will which is authorised under the provisions of the
Indian Succession Act. Insofar as the issue with regard to
knowledge of English of the testator is concerned, apart from
pointing out the relevant part of the evidence of the witnesses
to show that the testator could read and understand English,
it is argued that PW-4 (Sub-Registrar) had deposed that in all
cases of registration the testator is asked whether he/she is
aware of the contents of the Will. Shri Hansaria has cited the
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decision of this Court in Pentakota Satyanarayana and
Others Vs. Pentakota Seetharatnam and Others
contend that mere active participation in the registration of
the Will by itself would not be a vitiating factor. Reliance has
also been placed on two decisions of this Court in Mahesh
Kumar (Dead) by Lrs. Vs. Vinod Kumar and Others
and Ved Mitra Verma Vs. Dharam Deo Verma
that mere exclusion of the other heirs will not vitiate the
disposition made by a Will.
10. A Will may have certain features and may have been
executed in certain circumstances which may appear to be
somewhat unnatural. Such unusual features appearing in a
Will or the unnatural circumstances surrounding its
execution will definitely justify a close scrutiny before the
same can be accepted. It is the overall assessment of the
Court on the basis of such scrutiny; the cumulative effect of
the unusual features and circumstances which would weigh
with the Court in the determination required to be made by
5
6
7
2005 (8) SCC 67
2012 (4) SCC 387
2014 (9) SCALE 219
7
5
to
to show
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it. The judicial verdict, in the last resort, will be on the
basis of a consideration of all the unusual features and
suspicious circumstances put together and not on the
impact of any single feature that may be found in a Will or
a singular circumstance that may appear from the process
leading to its execution or registration. This, is the essence
of the repeated pronouncements made by this Court on the
subject including the decisions referred to and relied upon
before us.
11. In the present case, a close reading of the Will
indicates its clear language, and its unambiguous purport
and effect. The mind of the testator is clearly discernible
and the reasons for exclusion of the sons is apparent from
the Will itself. Insofar as the place of execution is
concerned, the inconsistency appearing in the verification
filed alongwith the application for probate by PW-3 and the
oral evidence of the said witness tendered in Court is
capable of being understood in the light of the fact that the
verification is in a standard form (Form No. 55) prescribed
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by the Madras High Court on the Original Side, as already
noticed. Besides, in the facts of the present case the
participation of the first respondent in the execution and
registration of the Will cannot be said to be a circumstance
that would warrant an adverse conclusion. The conduct of
the first respondent in summoning her friend (PW-3) to be
an attesting witness and in taking the testator to the office
of the Sub Registrar should, again, not warrant any adverse
conclusion. It also cannot escape notice that the Will dated
11.1.1982 is identical with the contents of the earlier Will
dated 28.12.1981. Insofar as the execution of the Will
dated 28.12.1981 and its registration is concerned no
active participation has been attributed to the first
respondent. The change of the attesting witnesses and the
non-examination of Seetha Padmanabhan who had attested
the second Will dated 11.1.1982 has been sufficiently
explained.
12. The lack of knowledge of English even if can be
attributed to the testator would not fundamentally alter the
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situation inasmuch as before registration of the Will the
contents thereof can be understood to have been explained
to the testator or ascertained from her by the Sub
Registrar, PW-4, who had deposed that such a practice is
normally adhered to. The non-production of the original
Will and reliance on the certified copy thereof is a
circumstance which has been reasonably explained by the
first respondent (plaintiff). The original Will, after its
execution on 11.1.1982, was in the custody of the testator
and it is only on the day or her death i.e. 27.4.1991 that the
first respondent (plaintiff) could find that the Will was
missing from the envelope marked ‘KPP Will’. The stand of
the plaintiff that the original Will was lost while in the
custody of her mother and her knowledge of such loss on
the day of her mother’s death cannot be disbelieved merely
because no report in this regard was lodged before the
police.
13. All the unusual and allegedly suspicious circumstances
being capable of being understood in the manner indicated
above, we cannot find any fault with the conclusions reached
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by the High Court while reversing the judgment of the learned
Trial Court.
14. Before parting we would like to observe that the very
fact that an appeal to this Court can be lodged only upon
grant of special leave to appeal would indicate the highly
circumscribed nature of the jurisdiction of this Court. In
contrast to a statutory appeal, an appeal lodged upon grant of
special leave pursuant to a provision of the Constitution would
call for highly economic exercise of the power which though
wide to strike at injustice wherever it occurs must display
highly judicious application thereof. Determination of facts
made by the High Court sitting as a first appellate court or
even while concurring as a second appellate court would not
be reopened unless the same give rise to questions of law
that require a serious debate or discloses wholly unacceptable
conclusions of fact which plainly demonstrate a travesty of
justice. Appreciation or re-appreciation of evidence must
come to a halt at some stage of the judicial proceedings and
cannot percolate to the constitutional court exercising
jurisdiction under Article 136.
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15. We, accordingly, dismiss these appeals affirm the order
dated 18.08.2009 passed by the Division Bench of the High
Court in Original Side Appeal No. 185 of 2001. However, in
the facts and circumstances of the case, we make no order as
to cost.
NEW DELHI,
SEPTEMBER 08, 2014.
...………….…………………J.
[RANJAN GOGOI]
..….…....……………………J.
[R.K. AGRAWAL]
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