REPORTABLE

 IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.4623 OF 2005

S.R. SRINIVASA & ORS.                                .….APPELLANTS   

VERSUS

S. PADMAVATHAMMA                                 …RESPONDENT

  J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal by special leave has been filed by the legal heirs of  

the original plaintiff, Lalithamma. OS No.195 of 1986 had been filed  

by  Lalithamma  in  the  Court  of  Civil  Judge,  Mysore  which  was  

subsequently  re-numbered as OS No.1434 of 1990 in the Court  of  

Principal  Civil  Judge,  (Junior  Division),  Mysore.  The  suit  was  for  

declaration  that  the  plaintiff  and  defendant  No.4  are  the  absolute  

owners of the suit schedule property and for possession thereof. The  

suit was dismissed by the trial court. The appeal filed by the plaintiffs  

against  the  aforesaid  judgment  was  allowed.  The  suit  filed  by  the  

plaintiffs was decreed as prayed. The High Court, however, in regular  

1

second appeal filed by the respondent herein, set aside the judgment  

of  the  first  appellate  court  and  restored  the  judgment  of  the  trial  

court, i.e. the suit filed by the plaintiffs-respondents was dismissed.  

In  these  circumstances,  the  legal  representatives  of  the  original  

plaintiffs have filed the present appeal by special leave in this Court.  

2. Briefly stated the facts of the case are that the plaintiffs claimed  

that Puttathayamma was wife of Sivaramaiah who pre-deceased her  

in 1950.  Puttathayamma died on 15.11.1979.  She had four children.  

Lalithamma (daughter) who died in 1990, was the original plaintiff.  

Subbaramaiah  (son)  who  died  issueless  in  1973  and  Smt.  

Kamalamma  (daughter)  also  died  issueless  in  1998.   She  was  

impleaded as defendant No.4 in this suit.  Smt. Indiramma was the 4th  

child.  She also died issueless on 24.10.85.  It is claimed that upon  

the  death  of  Subbaramaiah,  Puttathayamma  inherited  the  suit  

property  and  became  the  absolute  owner  being  class  one  heir  of  

Subbaramaiah.   Upon  the  death  of  Puttathayamma,  the  deceased  

plaintiff,  defendant No.4, Kamalamma and Indiramma inherited her  

property.  During  her  life  time,  Puttathayamma  was  living  with  

Indiramma.  Upon  her  death,  Indiramma  continued  to  be  in  

possession of  the  property.   The dispute  about  the  property  arose  

soon after the death of Indiramma.

2

3. Since the original  plaintiff  –  Lalithamma and defendant No.4  

were residing outside, they did not come to know about the death of  

their sister, Indiramma.  Defendant No.1 claiming to be close relative  

of  deceased  Indiramma  organized  and  performed  her  cremation  

ceremony.  The house in which Indiramma was residing i.e., schedule  

property contained a lot of movable properties such as gold and silver  

jewellery and other articles which were of considerable value.  He took  

charge of the house as well as the moveable properties by putting it  

under  lock and key.   On learning  about  the death  of  their  sister,  

appellants and defendant No.4 came to Mysore.  They demanded that  

defendant No.1 should hand over the possession of  the house and  

moveable properties.  He, however, refused to do so asserting that he  

was the absolute owner of the entire property.  Not only this, it  is  

stated  that  defendant  No.1  had taken away several  lacs  of  rupees  

which  had  been  kept  by  Indiramma  in  various  fixed  deposits.  

Defendant  No.1  had  declined  to  hand  over  the  title  deeds  of  the  

schedule property as well as the bank deposit receipts.   

4. The  appellant  and  defendant  No.4  also  learnt  that  the  first  

defendant had taken heavy advances from defendants No.2 and 3 and  

put them in possession of different portions of the schedule property  

as tenant.  He had been recovering heavy rent from defendants No.2  

and  3.   During  the  pendency  of  the  suit,  defendants  No.2  and  3  

3

vacated the suit schedule property.  Later, defendant no 5 was put in  

possession of the property.   

5. In the suit, it is made clear that appellant and the 4th defendant  

will  take  separate  action  regarding  the  bank  deposits  and  other  

moveable properties in appropriate proceedings after ascertaining the  

particulars thereof.  It is clarified that the present suit was filed for  

declaration of the title to the property and for possession as the first  

defendant has denied their title by refusing to hand over the property  

to them.

6. We may also notice here that during the pendency of the suit,  

defendant No.4 also passed away issueless.  The amended suit was,  

therefore, pursued by the L.Rs of deceased Lalithamma.   

7. In the written statement, it was claimed by the defendant No.1  

that Puttathayamma had executed a Will on 18.6.1974 in favour of  

Indiramma.  Consequently,  there  was  no  intestate  succession.  

Testamentary  succession  devolved  on  late  Indiramma.   Therefore,  

neither  the  plaintiffs  nor  the  4th defendant  could  succeed  to  the  

properties  of  Puttathayamma  at  all.   During  the  life  time  of  

Indiramma,  her  sister  did  not  care  to  even  look  after  her.   The  

moment  she  died,  they  have  claimed  to  be  heirs  of  her  estate.  

4

Defendant No.1, on the other hand, is the son of Seethamma, sister of  

Puttathayamma.  He denied the entire claim made by the plaintiffs.  

He further explained that he had informed the plaintiff and defendant  

No.4 about the death of Indiramma.  Although the plaintiff turned up  

on  the  5th day,  the  4th defendant  did  not  choose  to  come  at  all.  

Defendant No.1 further claimed to have carried out extensive repairs  

of the house.  It is also pleaded by defendant No.1 that Indiramma  

was the  second wife  of  one Chalapati  Rao,  who pre-deceased  her.  

Although Chalapati Rao did not beget any children with Indiramma,  

he  died  leaving  four  sons  and  two  daughters  from  his  first  wife.  

According  to  the  first  defendant,  the  legal  heirs  of  Chalapati  Rao  

would  have  preference  over  the  appellants  and  defendant  No.4.  

Therefore,  under  any  circumstances,  no  relief  could  be  granted  to  

them.   

8. In reply to the amended plaint, defendant No.1 stated that an  

agreement of mortgage had been created in favour of 5th defendant in  

respect  of  the  schedule  property.   Upon  receiving  Rs.1,00,000/-,  

defendant No.1 has put defendant No.5 in possession.  

9.   With  these  pleadings  parties  led  their  evidence.  Upon  

consideration of the entire material,  the suit filed by the appellants  

herein was dismissed by the Trial Court.

5

10. The  Trial  Court  notices  that  defendant  No.1  is  the  son  of  

Seethamma,  sister  of  Puttathayamma.   It  is  also  noticed  that  

Indiramma was the second wife  of  one Chelapathirao who had six  

children  from  his  previous  marriage.   Indiramma,  however,  died  

issueless.  The Will dated 18.6.1974 was produced by defendant No.1,  

during evidence.  The Trial Court observed that the plaintiffs have not  

seriously  disputed  the  execution  of  the  Will  by  Puttathayamma in  

favour of Indiramma.  Defendant No.1 had examined the scribe of the  

Will as DW2 to prove the Will.   It has been held that the appellants in  

fact admitted the execution of the Will in a subsequent suit being OS  

No.233 of 1998 which was filed by the appellants herein as the legal  

heirs.  In view of the testamentary succession, Indiramma became the  

absolute  owner  of  the  schedule  property.   Since  husband  of  

Indiramma had pre-deceased her, the property would devolve upon  

his children under Section 15 (1) (b)  of the Hindu Succession Act,  

1956 (hereinafter referred to as “the Act”).  It would not devolve on the  

appellants and defendant No.4 under Section 15(2) of the Act.  The  

Trial  Court  further  notices  the  claim  made  by  the  first  defendant  

during trial that Indiramma had executed a Will in his favour dated  

2.10.1984,  bequeathing  the  schedule  property  to  him.   The  Trial  

Court further notices that though defendant No.1 had got the Will  

dated 2.10.84 marked as Exhibit, he had not chosen to examine any  

6

of  the  attesting  witnesses  to  the  document.  Defendant  No.1  had  

earlier  not  instituted  any  proceedings  to  prove  his  title  over  the  

schedule property pursuant to the alleged Will.   Consequently,  the  

claim of  defendant  No.1  over  the  schedule  property  has also been  

negatived.   However,  in  view  of  the  finding  that  appellants  and  

defendant  No.4  cannot  not  inherit  the  property  of  Puttathayamma  

under Section 15 (2) of the Act, the suit has been dismissed.  

11. The aforesaid judgment of the Trial Court was challenged by the  

petitioners in appeal. The first appellate court in a very elaborately  

written judgment recapitulated  the undisputed facts.   It  is  noticed  

that Puttathayamma had four children, namely, plaintiff,  defendant  

No.4,  Subbaramaiah  (who  pre-deceased  Puttathayamma)  and  

Indiramma.  Indiramma was in possession of the schedule property.  

After the death of Puttathayamma, plaintiff and defendant No.4 were  

residing  in  their  matrimonial  homes  away  from  Puttathayamma.  

Defendant No.1 had cremated Indiramma. Appellant and defendant  

No.4  had  not  been  present  at  the  time  of  the  cremation.  

Subsequently, they demanded the possession of the house which the  

first defendant refused to hand over.  The first defendant claimed to  

have put 5th defendant in possession as a mortgagee. Therefore they  

filed the suit claiming title over the property and possession thereof.  

In the written statement defendant No.1 claimed that entire movable  

7

and immovable property had been bequeathed to Indiramma in a Will  

dated 18.6.1974.   The first appellate court upon examination of the  

entire  evidence  accepts  the  submission  made  on  behalf  of  the  

petitioners that the execution of the Will is shrouded by suspicious  

circumstances.  The  first  appellate  court  also  negatived  the  

submission made on behalf of the first defendant that the plaintiffs  

have admitted the execution of the Will in the subsequent suit.  Upon  

examination of the evidence, the first appellate court had come to the  

conclusion that PW1 had not admitted the genuineness of the Will  

anywhere.  This witness had also stated that he had come to know  

about the Will of Puttathayamma from the written statement filed by  

defendant  No.1.   It  is,  therefore,  held  that  there  can  be  no  

presumption with regard to the genuineness of the Will on the basis of  

the  alleged  admission.   Therefore  the  first  appeal  was  allowed,  

judgment and decree of the Trial Court were set aside.  The suit filed  

by the plaintiffs/appellants was decreed with costs declaring that the  

legal  representatives  of  the  plaintiffs  are  the  owners  of  the  suit  

property  and they  are  entitled  for  possession  of  the  suit  schedule  

property.   

12. Aggrieved  against  this,  defendant  No.1  filed  Regular  Second  

Appeal No.641 of 2003 in the High Court of Karnataka, Bangalore.  

8

The High Court allowed the Regular Second Appeal and nonsuited the  

plaintiffs, with the following observations:-

“5. The contesting 1st defendant does not set  up a rival claim of title,  but only disputes the  title  of  the  plaintiffs  and  their  right  to  seek  possession.   According  to  the  1st defendant,  Ex.D7  is  the  registered  will  executed  by  Puttathayamma  in  favour  of  her  daughter,  Indiramma.   As  argued  by  Shri  T.N.  Raghupathy,  learned  counsel  for  respondents- appellants,  I  find  that  PW1-1st plaintiff  has  unequivocally  admitted  in  his  evidence,  about  issuance of legal notice prior to the filing of the  suit  and  allegations  are  made  therein  about  execution  of  the  will  by  Puttathayamma  in  favour of Indiramma and also admits that she  was  married  to  one  Chalapati  Rao  who  predeceased her and through his first wife, had  four children.  Ex.D36 is the certified copy of the  plaint  in  OS  233/98  filed  by  the  plaintiffs  herein.   In  the  said  suit,  there  is  categorical  averment  to  the  effect  that  Puttathayamma,  during  her  lifetime,  had  executed  the  will,  bequeathing her immovable properties in favour  of Indiramma.   When execution of the will has  become an admitted fact by the plaintiff, formal  proof  of  execution  by  examining  the  attestors  would not be necessary in law.  Therefore, I am  unable  agree  with  Sri  Kashinath,  learned  counsel for the respondent that the will  is not  prove.  Further the finding of the appellate court  that  the  will  is  shrouded  with  suspicious  circumstances  is  based  on  unwarranted  surmises and contrary to the admissions of the  plaintiff.  Accordingly, point no. (1) is answered  in the affirmative.”

13. The High Court further holds that since the property had been  

acquired by Indiramma through Will, Section 15(2) of the Act would  

9

not be applicable.  It is noticed that “The provisions of Section 15 (2)  

will apply only when the property is acquired by a female by way of  

intestate  succession,  otherwise,  the  property  would  devolve  as  

directed  under  sub-Section  (1).   May  be,  the  children  of  deceased  

husband of Indiramma being step sons, are not entitled to succession  

under sub-sec. (1) (a), but however as heirs of the husband, under  

sub-sec. (1) (b) of Sec.15, they will be entitled to succeed to the estate.  

In  that  view  of  the  matter,  the  claim  of  title  of  property  by  the  

plaintiffs is untenable.”  It is further held that since the children of  

the first wife would be entitled to succeed to the estate, the appellants  

(plaintiffs)  have  no  right  to  seek  the  relief  of  title  by  succession.  

Consequently, the appeal was allowed.  The judgment and decree of  

the Appellate Court was set aside.  The judgment and decree of the  

Trial Court was confirmed.  This judgment is challenged before us in  

the present appeal.

14. Mr. Bhat, learned counsel for the appellants has submitted that  

the judgment of the High Court is wholly erroneous in facts as well as  

in law.  According to the learned counsel, the first appellate court has  

rightly held that the execution of the Will has not been proved.  There  

is no admission with regard to the execution or the genuineness of the  

Will in the second suit.  It was merely stated that a Will has been  

executed  by  Puttathayamma.   The  Will  had  to  be  proved  in  

10

accordance with the procedure laid down under Section 63 of the Act  

and in accordance with Section 68 of the Indian Evidence Act.  The  

first appellate court, upon examination, of the entire circumstances  

came  to  the  conclusion  that  the  Will  is  shrouded  by  suspicious  

circumstances.  The High Court, without examining any of the real  

issues  has  brushed  aside  the  reasons  given  by  the  first  appellate  

court.  According to the learned counsel, the second suit had been  

filed by the appellants herein only to prevent respondent No.1 from  

dealing with the movable properties of Puttathayamma.  Even if the  

execution  of  the  Will  is  admitted,  its  genuineness  had  to  be  

established by respondent No.1.  None of the attesting witnesses were  

examined.   The  Sub Registrar  was  also  not  examined.   DW2,  the  

scribe  did  not  anywhere  mention  that  he  had  attested  the  Will.  

Therefore, his examination as a witness would not cure the defects.  

The High Court has also ignored the fact that Indiramma has taken  

an active part in execution of the Will.  She was present when the Will  

was  written.   She  was  also  present  before  the  Sub  Registrar.  

According to the learned counsel, the mother was not in a fit state of  

mind to have executed the Will,  shortly after the death of her only  

son.   This fact has been totally ignored by the High Court.  If she had  

been the author of the Will, she would not have described her son as  

a “bachelor” whereas in fact he was a “divorcee”.  According to the  

learned  counsel,  the  Will  is  a  manufactured  document  created  by  

11

defendant No.1 to exclude the appellants from succession.  Learned  

counsel further submitted that since it was a judgment of reversal, it  

was necessary for the High Court to give cogent reasons to explain as  

to how the conclusions reached by the first appellate court were not  

acceptable.  The High Court has reversed the judgment without giving  

any reasons.   In  support  of  his  submissions,  learned counsel  has  

relied on the following judgments:-

(1) Jayantilal  Mansukhlal  and  another  vs.  Mehta  Chhanalal  Ambalal, AIR 1968 Gujarat 212;

(2) State of Punjab vs. Balwant Singh and others, 1992 Supp (3)   Supreme Court Cases 108;

(3) V. Dandapani Chettiar vs. Balasubramanian Chettiar (Dead)  by L.Rs. and Others, (2003) 6 Supreme Court Cases 633;

(4) Palanivelayutham Pillai and others vs. Ramachandran and  others, (2000) 6 Supreme Court Cases 151; and  

(5) K. Kamalam (dead) and another vs. Ayyasamy and another,  2001 (7) Supreme Court Cases 503.

15. According to the learned counsel, the property would be thus  

inherited  by  the  appellants  as  Puttathayamma died  intestate.   He  

further submitted that even if the Will dated 18.6.1974 is accepted as  

valid, defendant No.1 cannot inherit the property of Indiramma as she  

had died intestate.  The Will dated 2.10.84 propounded by defendant  

No.1  to  have  been  made  by  Indiramma  has  not  been  proved.  

Therefore,  again  under  Section 15 (2)  of  the  Act,  the  property  will  

revert back to the plaintiffs/appellants.  Learned counsel emphasized  

that defendant No.1 has no locus standi to contest the title of the  

appellants as he is a complete outsider for the family.  Section 15 of  

12

the Act has been enacted to ensure that the property remains within  

the  family.   Therefore,  this  court  has  consistently  held  against  

stranger in matters of succession.

16. Learned  counsel  for  the  respondents,  on  the  other  hand,  

submitted that the Will from Puttathayamma is proved.  There are no  

reasons to disbelieve a registered Will.   The exclusion of  the other  

daughters was because they were married and well settled.  Therefore,  

the property was given in good faith to the unmarried Indiramma.  

Learned  counsel  further  submitted  that  if  a  respondent  is  a  

trespasser,  equally  the appellants  have not  proved any better  title.  

The  first  appellate  court  has  wrongly  stated  that  there  is  no  

explanation with regard to the custody of the Will as it was given to  

respondent  No.1  by  Indiramma.   It  is  further  submitted  that  the  

suspicious  circumstances  pointed  out  by  the  appellants  are  only  

conjectural.   Therefore,  the High Court  has rightly  disregarded the  

same.  Genuineness of the Will cannot be disbelieved merely because  

the  Sub  Registrar  or  the  scribe  was  not  examined.   It  was  not  

mandatory  to  examine  either  the  scribe  or  the  Sub  Registrar.  

Indiramma’s  presence in the house at  the time when the Will  was  

written  is  natural  as  she  was  living  with  Puttathayamma.   The  

description of the son in the Will as “bachelor” instead of “divorcee”  

would not be so material.  The testator only wanted to say that he was  

13

unmarried.   The  appellants  have  failed  to  lead  any  evidence  that  

Puttathayamma was not in a sound and disposing mind due to the  

death of her son.  In fact it was only because her son had died that  

she bequeathed her property to Indiramma.  Learned counsel further  

submitted that in view of the admission about the execution of the  

Will made in the subsequent suit, it cannot possible by held that the  

Will  was  not  duly  proved.   According  to  the  learned  counsel,  

admissions  are  the  best  form of  evidence.   Unless  it  is  effectively  

rebutted, the same can be relied upon.  He relies on the following  

judgments:-

(1) Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak  Gosavi and others, AIR 1960 Supreme Court 100;

(2) Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and  others, AIR 1974 Supreme Court 471; and  

(3) Gautam Sarup vs. Leela Jetly and others, (2008) 7 SCC 85.  

17. In  reply,  Mr.  Bhat  has  submitted  that  there  is  no  clear  

admission  in  the  subsequent  suit  which  was  only  to  prevent  the  

respondents to be away from the movable property.   In any event,  

admissions cannot be relied upon to dispense with proof of the Will as  

required  under  law.   He  relies  on  the  judgments  in  the  cases  of  

Somnath  Berman  v.  Dr.S.P.  Raju  and  another,  AIR  1970  

Supreme Court 846 and Smt. Jaswant Kaur v. Smt. Amrit Kaur  

and others, AIR 1977 Supreme Court 74.

14

18. We  have  considered  the  submissions  made  by  the  learned  

counsel for the parties.  It is not disputed that respondent No.1 is a  

rank outsider.  He is not a lineal descendant of Puttathayamma.  He  

is  son of  Puttathayamma’s sister  Seethamma.   This would become  

clear from the genealogical graph of the family which is as under:-      

   Puttathayamma              Sivaramaia   (died in 15.11.1997)   (died in 1950)           

| | | |

Smt. Lalithamma  Subbaramaiah Smt. Kamalamma Smt. Indiramma

(died in 1990)   (died 1973) (died 1998) (died issueless

(original plaintiff)   issueless issueless 24.10.1985

(def.4) (husband  Predeceased)

_____________________________________________________________

| | | |

S.R. Srinivasan B.S. Umadevi S.R. Venkat-          S.R.V.  

S.R. Rajarao Krishnaiah Subbarao

(plff.1) (plff.2) (plff.3) (plff.4)        (plff.5)

19.  Clearly if the Will dated 18.61974 is held not to be genuine, the  

property would be inherited by the appellants under Section 15 (2) of  

the Act.  There is no dispute on this proposition of law by either side.  

The  only  question  that  needs  determination  in  this  case  is  as  to  

15

whether the Will executed by Puttathayamma has been proved to be  

duly executed and the same was genuine.

20.    The statutory provision regarding the rules of succession in case  

of female Hindus as enacted in Section 15 of the Hindu Succession  

Act, 1956 is as follows:   

“15.  General rules of succession in the case of  female  Hindus.—(1)  The  property  of  a  female  Hindu dying intestate shall devolve according to  the rules set out in Section 16,— (a)  firstly,  upon  the  sons  and  the  daughters  (including the children of any predeceased son  or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub- section (1),— (a)  any  property  inherited  by  a  female  Hindu  from her father or mother shall devolve, in the  absence of any son or daughter of the deceased  (including the children of any predeceased son  or daughter) not upon the other heirs referred to  in sub-section (1) in the order specified therein,  but upon the heirs of the father; and (b)  any  property  inherited  by  a  female  Hindu  from  her  husband  or  from  her  father-in-law  shall  devolve,  in  the  absence  of  any  son  or  daughter of the deceased (including the children  of  any predeceased son or daughter)  not upon  the other heirs referred to in sub-section (1) in  the order specified therein, but upon the heirs of  the husband.”

16

21.   A perusal of the aforesaid provisions would show that the basic  

aim  of  Section  15(2)  is  to  ensure  that  inherited  property  of  an  

issueless female Hindu dying intestate goes back to the source.  It  

was enacted to prevent inherited property falling into the hands of  

strangers.  This is also evident from the recommendations of the Joint  

Committee of the Houses of Parliament, which have been duly noticed  

by this Court in the case of State of Punjab v. Balwant Singh, 1992  

Supp (3)  SCC 108.   The scheme underlying the introduction of the  

aforesaid provision had been discussed as follows:  

“It  came  to  be  incorporated  on  the  recommendations of the Joint Committee of the  two Houses of Parliament. The reason given by  the Joint Committee is found in clause (17) of  the Bill which reads as follows:

“While revising the order of succession among  the heirs to a Hindu female, the Joint Committee  have  provided that  properties  inherited by her  from her father reverts to the family of the father  in  the absence  of  issue and similarly  property  inherited  from  her  husband  or  father-in-law  reverts  to  the  heirs  of  the  husband  in  the  absence  of  issue.  In  the  opinion  of  the  Joint  Committee  such  a  provision  would  prevent  properties passing into the hands of persons to  whom  justice  would  demand  they  should  not  pass.”

15. The report of the Joint Committee which  was accepted by Parliament indicates that sub- section (2) of Section 15 was intended to revise  the  order  of  succession  among  the  heirs  to  a  Hindu female and to prevent the properties from  passing  into  the  hands  of  persons  to  whom  justice would demand that they should not pass.  That means the property should go in the first  instance to the heirs of the husband or to the  source from where it came.”

17

22. This Court had occasion to consider the scheme of the aforesaid  

Section in the case of  V. Dandapani Chettiar v. Balasubramanian  

Chettiar,(2003)  6  SCC 633.   The  extent  and  nature  of  the  rights  

conferred by this section is expressed as follows:-  

“9. The above section propounds a definite and  uniform scheme of succession to the property of  a  female  Hindu  who  dies  intestate  after  the  commencement of the Act. This section groups  the heirs of a female intestate into five categories  described as Entries (a)  to (e)  and specified in  sub-section  (1).  Two  exceptions,  both  of  the  same nature are engrafted by sub-section (2) on  the  otherwise  uniform  order  of  succession  prescribed  by  sub-section  (1).  The  two  exceptions  are  that  if  the  female  dies  without  leaving  any  issue,  then  (1)  in  respect  of  the  property  inherited  by  her  from  her  father  or  mother, that property will devolve not according  to the order laid down in the five Entries (a) to  (e), but upon the heirs of the father; and (2) in  respect of the property inherited by her from her  husband  or  father-in-law,  it  will  devolve  not  according  to  the  order  laid  down  in  the  five  Entries (a) to (e) of sub-section (1) but upon the  heirs  of  the  husband.  The  two  exceptions  mentioned  above  are  confined  to  the  property  “inherited”  from  the  father,  mother,  husband  and father-in-law of  the  female  Hindu and do  not affect the property acquired by her by gift or  by  device  under  a  Will  of  any  of  them.  The  present Section 15 has to be read in conjunction  with  Section  16  which  evolves  a  new  and  uniform order of succession to her property and  regulates the manner of its distribution. In other  words,  the  order  of  succession  in  case  of  property  inherited  by  her  from  her  father  or  mother, its operation in confined to the case of  dying  without  leaving  a  son,  a  daughter  or  children of any predeceased son or daughter.”

18

“10. Sub-section (2) of Section 15 carves out an  exception  in  case  of  a  female  dying  intestate  without  leaving son,  daughter  or  children of  a  predeceased  son or  daughter.  In such a  case,  the rule prescribed is to find out the source from  which  she  has  inherited  the  property.  If  it  is  inherited  from  her  father  or  mother,  it  would  devolve as prescribed under Section 15(2)(a). If it  is inherited by her from her husband or father- in-law,  it  would devolve upon the heirs  of  her  husband  under  Section  15(2)(b).  The  clause  enacts  that  in  a  case  where  the  property  is  inherited by a female from her father or mother,  it would devolve not upon the other heirs, but  upon the heirs of her father. This would mean  that if there is no son or daughter including the  children  of  any  predeceased  son  or  daughter,  then the property would devolve upon the heirs  of her father. Result would be — if the property  is inherited by a female from her father or her  mother,  neither  her  husband  nor  his  heirs  would  get  such  property,  but  it  would  revert  back to the heirs of her father.”

23. As noticed earlier by virtue of Section 15(2) (a) of the Act, the  

appellants would inherit the property in dispute.  This right is sought  

to  be  defeated  by  defendant  No.1  on  the  basis  of  the  Will  dated  

18.6.1974,  allegedly  executed  by  Puttathayamma.  Defendant  No.1  

being the sole beneficiary under the Will claims that the plaintiffs can  

not claim to ‘inherit’ the property on the basis of intestate succession.  

Undoubtedly, therefore, it was for defendant No.1 to prove that the  

Will was duly executed, and proved to be genuine.   

19

24.    The mode, the manner and the relevant legal provisions which  

govern the proof of Wills have been elaborately dilated upon by this  

Court in a number of cases.  We may make a reference only to some  

of these decisions.  

25. In  the  case  of  H.  Venkatachala  Iyengar  v. B.N.  

Thimmajamma,  [1959 Supp (1) SCR 426] Gajendragadkar J. stated  

the true legal position in the matter of proof of Wills. The aforesaid  

statement of law was further clarified by Chandrachud J. in the case  

of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369] as follows:

“1. Stated generally, a will has to be proved  like any other document, the test to be applied  being  the  usual  test  of  the  satisfaction  of  the  prudent mind in such matters. As in the case of  proof of other documents, so in the case of proof  of  wills,  one  cannot  insist  on  proof  with  mathematical certainty.

2.  Since  Section  63  of  the  Succession  Act  requires a will to be attested, it cannot be used  as evidence until, as required by Section 68 of  the Evidence Act, one attesting witness at least  has been called for  the  purpose of  proving  its  execution, if there be an attesting witness alive,  and  subject  to  the  process  of  the  court  and  capable of giving evidence.

3.  Unlike  other  documents,  the  will  speaks  from the death of the testator and therefore the  maker of the will is never available for deposing  as to the circumstances in which the will came  to  be  executed.  This  aspect  introduces  an  element  of  solemnity  in  the  decision  of  the  question whether the document propounded is  proved to be the last will and testament of the  testator.  Normally,  the onus which lies on the  propounder  can be taken to  be  discharged on  

20

proof  of  the  essential  facts  which  go  into  the  making of the will.

4. Cases in which the execution of the will is  surrounded by suspicious circumstances stand  on  a  different  footing.  A  shaky  signature,  a  feeble mind, an unfair and unjust disposition of  property,  the  propounder  himself  taking  a  leading  part  in  the  making  of  the  will  under  which he receives a substantial benefit and such  other  circumstances  raise  suspicion about  the  execution of the will. That suspicion cannot be  removed  by  the  mere  assertion  of  the  propounder that the will bears the signature of  the testator or that the testator was in a sound  and disposing state of mind and memory at the  time when the will was made, or that those like  the wife and children of the testator who would  normally  receive  their  due  share  in  his  estate  were  disinherited  because  the  testator  might  have had his own reasons for excluding them.  The  presence  of  suspicious  circumstances  makes the initial onus heavier and therefore, in  cases where the circumstances attendant upon  the execution of the will excite the suspicion of  the  court,  the  propounder  must  remove  all  legitimate  suspicions  before  the  document  can  be accepted as the last will of the testator.

5. It is in connection with wills, the execution  of  which  is  surrounded  by  suspicious  circumstances that the test of satisfaction of the  judicial conscience has been evolved. That test  emphasises that in determining the question as  to whether an instrument produced before the  court is the last will of the testator, the court is  called upon to decide a solemn question and by  reason  of  suspicious  circumstances  the  court  has to be satisfied fully that the will  has been  validly executed by the testator.

6.  If  a  caveator  alleges  fraud,  undue  influence,  coercion  etc.  in  regard  to  the  execution  of  the  will,  such  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  raise  a  doubt  as  to  whether the testator was acting of his own free  will. And then it is a part of the initial onus of  the propounder to remove all reasonable doubts  in the matter.”

21

26.    Applying the aforesaid principles to this case, it would become  

evident that the Will has not been duly proved. As noticed earlier in  

this case, none of the attesting witnesses have been examined. The  

scribe, who was examined as DW.2, has not stated that he had signed  

the Will with the intention to attest. In his evidence, he has merely  

stated that he was the scribe of the Will. He even admitted that he  

could not remember the names of the witnesses to the Will.  In such  

circumstances, the observations made by this Court in the case of  

M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, [(1969) 1  

SCC 573], become relevant. Considering the question as to whether a  

scribe could also be an attesting witness, it is observed as follows:  

“It is essential that the witness should have put  his signature  animo attestandi,  that is,  for  the  purpose  of  attesting  that  he  has  seen  the  executant  sign  or  has  received  from  him  a  personal acknowledgment of his signature. If a  person puts his signature on the document for  some other purpose, e.g., to certify that he is a  scribe or an identifier or a registering officer, he  is not an attesting witness.”

27. In  our  opinion,  the  aforesaid  test  has  not  been  satisfied  by  

DW.2  the  scribe.  The  situation  herein  is  rather  similar  to  the  

circumstances considered by this Court in the case of N. Kamalam v.  

Ayyasamy,  [(2001)  7  SCC  503].   Considering  the  effect  of  the  

signature of scribe on a Will, this Court observed as follows:  

“26.The effect of subscribing a signature on the  part  of  the  scribe  cannot  in  our  view  be  

22

identified to be of the same status as that of the  attesting witnesses.”

“The animus to attest, thus, is not available, so  far  as  the  scribe  is  concerned:  he  is  not  a  witness to the will but a mere writer of the will.  The  statutory  requirement  as  noticed  above  cannot  thus  be  transposed  in  favour  of  the  writer, rather goes against the propounder since  both  the  witnesses  are  named  therein  with  detailed address and no attempt has been made  to  bring  them  or  to  produce  them  before  the  court  so  as  to  satisfy  the  judicial  conscience.  Presence of scribe and his signature appearing  on the document does not by itself be taken to  be  the  proof  of  due  attestation  unless  the  situation is so expressed in the document itself  —  this  is  again,  however,  not  the  situation  existing  presently  in  the  matter  under  consideration.”

28.     The aforesaid observations are fully applicable in this case.  

Admittedly, none of the attesting witnesses have been examined. Here  

signature  of  the  scribe  cannot  be  taken  as  proof  of  attestation.  

Therefore, it becomes evident that the execution of a Will can be held  

to have been proved when the statutory requirements for proving the  

Will are satisfied. The High Court has however held that proof of the  

Will was not necessary as the execution of the Will has been admitted  

in the pleadings in O.S.No.233 of 1998, and in the evidence of P.W.1.  

29.     The contention that the execution of the Will has been admitted  

by  the  appellants  herein  had  been  negated  by  the  First  Appellate  

Court in the following manner:  

23

“What is admitted under EXD 36 i.e. plaint in  O.S No: 233/98 at Para 7 is only about the will  and  not  the  genuineness  of  the  will.  During  evidence  of  PW  1,  it  is  elicited  in  the  cross  examination that he came to know about the will  of  Puttathayamma  as  it  was  revealed  in  the  written  statement  and  that  Puttathayamma  might  have  written  the  will  dated  4-7-74.  But  PW 1 has not admitted the genuineness of the  will  anywhere  in  his  evidence.  Therefore  the  contention of the learned Advocate for the first  respondent  that  the  execution  of  the  will  is  admitted and therefore its genuineness is to be  presumed cannot be accepted”  

30. The aforesaid findings are borne out from the record produced  

before us, which we have perused.  There is no admission about the  

genuineness or legality of the Will either in the plaint of OS No.233 of  

1998 or in the evidence of PW1.  The High court committed a serious  

error  in  setting  aside  the  well  considered  findings,  which the  first  

Appellate Court had recorded upon correct analysis of the pleadings  

and the evidence.  

31.     It is undoubtedly correct that a true and clear admission would  

provide  the  best  proof  of  the  facts  admitted.   It  may  prove  to  be  

decisive  unless  successfully  withdrawn  or  proved  to  be  erroneous.  

The  legal  position  with  regard  to  admissions  and their  evidentiary  

value has been dilated upon by this Court in many cases. We may  

notice some of them.

24

 32.   In the case of  Narayan Bhagwantrao Gosavi Balajiwale v.   

Gopal Vinayak Gosavi (1960) 1 SCR 773 it was observed as follows:

“An  admission  is  the  best  evidence  that  an  opposing party can rely upon, and though not  conclusive,  is  decisive  of  the  matter,  unless  successfully withdrawn or proved erroneous.”

33.  In the case of  Nagindas Ramdas v.  Dalpatram Ichharam,   

(1974) 1 SCC 242, it has been observed:  

“Admissions, if true and clear are by far the  best proof of the facts admitted. Admissions in  pleadings  or  judicial  admissions,  admissible  under Section 58 of the Evidence Act, made by  the  parties  or  their  agents  at  or  before  the  hearing of  the case,  stand on a higher footing  than evidentiary admissions. The former class of  admissions are fully binding on the party that  makes  them and constitute  a  waiver  of  proof.  They by themselves can be made the foundation  of the rights of the parties. On the other hand,  evidentiary  admissions which are  receivable  at  the  trial  as  evidence,  are  by  themselves,  not  conclusive. They can be shown to be wrong.”

34.     The aforesaid two judgments along with some other earlier  

judgments of this Court were considered by this Court in the case of  

Gautam  Sarup v.  Leela  Jetly,(2008)  7  SCC  85  wherein  it  was  

observed as follows:  

“16.A thing admitted in view of Section 58 of the  Evidence Act need not be proved. Order 8 Rule 5  of the Code of Civil Procedure provides that even  a vague or evasive denial may be treated to be  an admission in which event the court may pass  a decree in favour of the plaintiff. Relying on or  on the basis thereof a suit, having regard to the  

25

provisions of Order 12 Rule 6 of the Code of Civil  Procedure may also be decreed on admission. It  is one thing to say that without resiling from an  admission,  it  would  be  permissible  to  explain  under what circumstances the same had been  made or it was made under a mistaken belief or  to clarify one’s stand inter alia in regard to the  extent  or  effect  of  such  admission,  but  it  is  another  thing  to  say  that  a  person  can  be  permitted to totally resile therefrom.”

           “28. What,  therefore,  emerges  from  the  discussions  made  hereinbefore  is  that  a  categorical  admission  cannot  be  resiled  from  but,  in  a  given  case,  it  may  be  explained  or  clarified.  Offering  explanation  in  regard  to  an  admission  or  explaining  away  the  same,  however,  would  depend  upon  the  nature  and  character thereof. It may be that a defendant is  entitled  to  take  an  alternative  plea.  Such  alternative pleas,  however,  cannot be mutually  destructive of each other.”

35.      Examined on the  basis  of  the  law stated  above we are  

unable to agree with the High Court that there was no need for  

independent proof of the Will, in view of the admissions made in  

OS No.233 of 1998 and the evidence of PW1.  In fact there is no  

admission  except  that  Puttathayamma  had  executed  a  Will  

bequeathing  only  the  immovable  properties  belonging  to  her  in  

favour of Indiramma.  The First Appellate Court, in our opinion,  

correctly observed that the aforesaid admission is only about the  

making of the Will and not the genuineness of the Will.  Similarly,  

PW1 only stated that he had come to know about the registration  

26

of the Will of his grandmother favouring Indiramma through the  

written statement of the first defendant.  The aforesaid statement  

is followed by the following statements “Other than that I did not  

know about the Will.  She was not signing in English.  I have not  

seen her signing in Kannada.  There was no reason for my grand  

mother to write a Will favouring Indiramma.”  Even in the cross-

examination he reiterated that  “I know about the will written by  

Puttathayamma  on  18.6.1974  bequeathing  the  properties  to  

Indiramma  only  through  the  written  statement  of  the  first  

defendant.”  In view of the above we are of the opinion that the  

High Court committed an error in setting aside the well-considered  

finding of the First Appellate Court. The statements contained in  

the plaint as well as in the evidence of PW1 would not amount to  

admissions with regard to the due execution and genuineness of  

the Will dated 18.6.1974.

36. In  our  opinion,  the  High  Court  also  committed  a  serious  

error  by  totally  disregarding  the  suspicious  circumstances  

surrounding the execution of the Will.  The First Appellate Court  

on  analysis  of  the  entire  evidence  had  clearly  recorded  cogent  

reasons to conclude that the execution of the Will is surrounded by  

suspicious circumstances.      

27

37.    The First Appellate Court pointed out that the execution of  

the Will  has not been proved as none of the attesting witnesses  

have  been  examined.  The  scribe  who  was  examined  as  DW.2  

nowhere stated that he had attested the Will. The animus to attest  

was  not  evident  from  the  document.  In  the  Will,  D.W.2  had  

described himself  as the scribe of  the Will  and signed as such.  

Therefore, in view of the ratio of law laid down in  N. Kamalam  

(supra)  the  statutory  requirement  of  attestation  was  clearly  not  

satisfied.  

38.   The First Appellate Court also observed that the Will is not  

genuine,  its  execution  being  shrouded  in  suspicious  

circumstances.  It  is  noticed  by  the  First  Appellate  Court  that  

although  Puttathayamma  had  been  allotted  certain  specific  

property, there is no recital in the Will as to which of the properties  

had been bequeathed to Indiramma.  It is further noticed that son  

of Puttathayamma died on 27.10.73.  She had, therefore, inherited  

the  property  which  had  been  allotted  to  the  share  of  the  

respondent.   The Will  does not describe the exact property that  

may  have  been  bequeathed  by  Puttathayamma  in  favour  of  

Indiramma.   Non-description of  the  schedule property  creates  a  

reasonable suspicion as to whether Puttathayamma executed the  

Will  Ex.D7.   It  is  noticed  that  if  she  had  the  intention  of  

28

bequeathing  all  her  property  to  Indiramma,  she  would  have  

mentioned the details of all the properties which belonged to her in  

the Will.  The First Appellate Court further holds that no reason  

has been given as to why the Will was presented before the Sub  

Registrar on two separate occasions for registration.  Although the  

son of Puttathayamma died after having been divorced from his  

wife he is described in the Will as a bachelor.  No reason has been  

stated in the Will as to why the other two daughters have been  

excluded  from  the  property  by  Puttathayamma.   Since  the  

suspicious circumstances have not been explained by defendant  

No.1,  the  Will  is  not  genuine.   The  First  Appellate  Court  also  

notices that although Indiramma is the sole beneficiary in the Will,  

she was present at the time when the Will was written.  She was  

also present in the office of Registrar when the Will was presented  

for registration.  This would clearly show that Indiramma had an  

evil eye on the suit property and, therefore, the descriptions of the  

other  properties  were  not  given.  The  active  participation  of  

Indiramma in the writing and the registration of the Will may well  

create a suspicion about its genuineness. We may notice here the  

observations made by this Court in the case of  Ramachandra v.  

Champabia [AIR 1965 SC 357]. This Court has held as follows:

“This  Court  also  pointed  out  that  apart  from  suspicious circumstances of this kind where it appears  

29

that the propounder has taken a prominent part in the  execution of the will which confers substantial benefits  on him that itself is generally treated as a suspicious  circumstances attending the execution of the will and  the propounder is required to remove the suspicion by  clear  and  satisfactory  evidence.  In  other  words,  the  propounder must satisfy the conscience of the court  that the document upon which he relies in the last will  and testament of the testator.”

39. Since there were suspicious circumstances, it was necessary  

for the defendants to explain the same.  The registration of the Will  

by  itself  was  not  sufficient  to  remove  the  suspicion.   The  first  

appellate court also notices that even in cases where the execution  

of the Will is admitted, at least one attesting witness of the Will has  

to be examined to receive the Will in evidence.  DW2, who has been  

examined is the scribe of the Will, has given no plausible reasons  

as to why the Will was presented twice before the Sub Registrar for  

registration.  Nor is it stated by this witness as to why the Will was  

not registered on the first occasion.  It is also held by the First  

Appellate Court that non-examination of the Sub Registrar creates  

suspicion about the genuineness of the Will.  Even the attesting  

witnesses  to  the  Will  have  not  been  examined.   There  is  no  

evidence whether the Will was read over by the Sub Registrar or  

anybody else before it was registered.  It is not explained as to how  

the  Will  came  into  possession  of  defendant  No.1.   There  is  no  

evidence  when  he  was  put  in  proper  custody  of  the  Will.  

Considering  the  cumulative  effect  of  all  the  circumstances,  the  

30

First  Appellate  Court  has  held  that  execution  of  the  Will  is  

surrounded  by  suspicious  circumstances.  Consequently,  the  

appeal was allowed and the judgment of the Trial Court was set  

aside.

40. The High Court in its judgment seems to have misread the  

entire evidence.  Aforesaid findings recorded by the First Appellate  

Court have been brushed aside by dubbing them as conjectural.  

We are unable to appreciate the course adopted by the High Court.  

It  was  so  influenced  by  the  alleged  admission  made  by  the  

plaintiffs  in  the  second  suit,  it  did  not  deem  it  appropriate  to  

examine  the  material  which  formed  the  basis  of  the  findings  

recorded  by  the  First  Appellate  Court.  It  appears  that  the  

pleadings, documents and the evidence was not read by the High  

Court yet it concluded that the findings of the Appellate Court were  

conjectural.  We are unable to endorse the view expressed by the  

High Court.

41. The High court ought to have taken great care to satisfy its  

judicial  conscience  that  the  execution  of  the  Will  was  not  

surrounded  by  suspicious  circumstances.   The  Appellate  Court  

had pointed out so many suspicious circumstances which could  

not have been brushed aside as being conjectural.  The findings  

31

were based on documentary evidence.   It  was necessary for the  

defendant No.1 to answer a number of pertinent questions relating  

to the execution of the Will.  

42. It was also necessary for the High Court to exercise care and  

caution to ensure that the propounder of the Will has removed all  

legitimate  suspicion.   We have  earlier  noticed  that  in  this  case  

Indiramma was living with her mother Puttathayamma at the time  

of her death.  She was the sole beneficiary under the Will dated  

18.6.1974.  Her sisters, the original plaintiff and defendant No.4  

that is, Lalithamma and Kamalamma had been excluded from the  

inheritance.  There is no convincing reason as to why they were  

excluded from the inheritance. The Will merely mentions that these  

two ladies are well settled in their lives whereas Indiramma was  

not married.  The Will does not specify which of the properties has  

been  bequeathed  to  Indiramma,  although  Puttathayamma  has  

been allotted certain specific property.  Puttathayamma’s son had  

died  on 27.10.73 and the Will  is  stated  to  have  been made on  

18.6.1974.  The Will is signed by Indiramma, even though she is  

the sole beneficiary under the Will.  She was present in the office of  

the sub-Registrar at the time when the Will was registered.  There  

is also a question as to why the Will was presented for registration  

on two different occasions.  It appears that on the date when the  

32

Will  was executed Indiramma also obtained a power of attorney  

from her mother  which would demonstrate  her  anxiety  to come  

into possession of  the property immediately.   Neither  the scribe  

(DW2) nor DW1 were able to give any satisfactory explanation as to  

why the Will  was not registered on the first  occasion.   In such  

circumstances it was the duty of the of the High Court to carefully  

examine  the  findings  recorded  by  the  lower  Appellate  Court  

together with the relevant documents on the record to ensure that  

there  is  a  proper  explanation  given  by  defendant  No.1  of  the  

aforesaid suspicious circumstances.  This Court in  Iyengar case  

(supra) had clearly held that cases in which the execution of the  

Will  is  surrounded by suspicious circumstances,  it  may raise  a  

doubt as to whether the testator was acting of his own free will.  In  

such  circumstances  it  is  a  part  of  the  initial  onus  of  the  

propounder to  remove all  reasonable  doubts in  the matter.  The  

presence of suspicious circumstances makes initial onus heavier.  

Such suspicion cannot be removed by the mere assertion of the  

propounder that the Will bears signature of the testator or that the  

testator was in a sound and disposing state of mind at the time  

when the Will was made.  

43. In our opinion, the High Court failed to exercise proper care  

and caution by not thoroughly examining the evidence led by the  

33

party, especially when it was not in agreement with the reasons  

recorded by the First  Appellate Court.   In the case of  Jaswant  

Kaur v.  Amrit Kaur, (1977) 1 SCC 369 this  Court reiterated the  

principles  governing  the  proof  of  a  Will  which  is  alleged  to  be  

surrounded by suspicious circumstances.  Justice Chandrachud  

speaking for the Court observed as follows:  

“8. The defendant who is  the principal  legatee  and for  all  practical  purposes  the  sole  legatee  under the will, is also the propounder of the will.  It  is  he  who set  up the  will  in  answer  to  the  plaintiff’s claim in the suit for a one-half share  in her husband’s estate. Leaving aside the rules  as to the burden of proof which are peculiar to  the  proof  of  testamentary  instruments,  the  normal rule which governs any legal proceeding  is that the burden of proving a fact in issue lies  on him who asserts it, not on him who denies it.  In  other  words,  the  burden  lies  on  the  party  which would fail in the suit if no evidence were  led on the fact alleged by him. Accordingly, the  defendant  ought  to  have  led  satisfactory  evidence to prove the due execution of the will  by his grandfather Sardar Gobinder Singh.

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.”    

34

44. In our opinion, the High Court failed to examine the entire  

issue in accordance with the aforesaid principles laid down by this  

Court.  We  are,  therefore,  unable  to  uphold  the  impugned  

judgment.  The appeal is allowed.  Judgment of the High court is  

set  aside and the judgment of  the First  Appellate Court  i.e.  the  

Court of the Principal  Civil  Judge (Senior Division) at  Mysore is  

restored.   

……….…………………………..J.              [V.S. SIRPURKAR]

..……….………………………….J. NEW DELHI;                     [ SURINDER SINGH NIJJAR ]  APRIL 22, 2010.   

35