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CASE NO.: Appeal (civil)  9726 of 2003 Special Leave Petition (civil)  9026 of 2002

PETITIONER: Uma Devi Nambiar & Ors.                                  

RESPONDENT: T.C. Sidhan (Dead)                                               

DATE OF JUDGMENT: 11/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Leave granted.            When crave for materialistic possessions outweighs personal love  and affection, the inevitable result is passing long times in the  corridors of Courts and the case at hand is no exception. In a  proceeding initiated under Sections 192 to 195 of the Indian Succession  Act 1925 (for short the ’Act’) validity and genuineness of a Will was  decided by the District Court, Kozhikode and the Kerala High Court  refused to interfere under Section 115 of the Code of Civil Procedure  1908 (for short the ’Code’), negativing appellants’ plea that such  adjudication was not permissible in the said proceeding.  

The background in which the litigation has reached this Court is  essentially as follows:

The petitioner No.1 had initiated proceedings under Sections 192  to 195 of the Act, aggrieved by the action of the respondent in  allegedly taking illegal possession of the petitioner’s palatial  ancestral home situate in the heart of the city of Calicut on U.K.  Sankunni Road (a road named after the petitioner’s father Late Shri U.K.  Sankunni). The said proceedings being under Part VII of the Act were  summary in nature, confined only to the issue of possession of the  ancestral family home and the two garages. It has been judicially  recognized that in such proceedings where the issue is one of  possession, the question of title cannot be gone into in detail.  According to her, the respondent (Dr. T.C. Sidhan) propounded a forged  Will in the said proceedings and sought adjudication of the same, to  which the petitioner no.1, objected to.  In fact, petitioner no. 1 had  filed a separate application (I.A. No. 2976 of 2000) objecting to the  adjudication of the alleged Will since the District Court exercising  summary powers had no jurisdiction to do so. The petitioner no.1  reiterated her objections even at the time when the witnesses were  produced by the respondent (Dr. T.C. Sidhan). Notwithstanding all these,  the District Court proceeded to adjudicate on the genuineness of the  Will and solely on that ground gave possession of the property to the  respondent. The District Court justified this assumption of jurisdiction  by citing consent of parties.  This was, according to petitioners  clearly incorrect and on the contrary the petitioner no.1 had objected  to the said course of action. Original respondent Dr. T.C. Sidhan has  died in the meantime, his legal representatives have been impleaded.  

The petitioner no.1, therefore, filed a revision before the High

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Court raising again the fundamental issue of lack of jurisdiction on the  part of the District Judge, adverting to the specific objections raised  in respect of the lack of jurisdiction of the District Court to consider  title.  The High Court, agreed with the contention that the claim of the  respondent had to be decided in appropriate proceedings before the  appropriate forum.  The High Court adverting to the submissions on the  question of jurisdiction, held as follows:

"In this case, the revision petitioner has no  contention that the lower court had no jurisdiction  to pass the impugned order.  The only contention is  that the order passed by the lower court is illegal  as it had exercised jurisdiction which is no vested  in the court, in so far as considering the  genuineness, legality and validity of the Will  propounded by the 1st Respondent in the above summary  proceedings, wherein the jurisdiction of the lower  court was invoked only for the settlement of the  dispute regarding actual possession."

              The schedule property is the residential house and compound which  belonged to deceased Sankunni. Sankunni had two daughters, the  petitioner no.1 and her elder sister Rani Sidhan, wife of the original  respondent Dr. T.C. Sidhan.  After the death of Sankunni, the property  devolved upon the petitioner no.1 and the wife of respondent Dr. T.C.  Sidhan on equal rights. Petitioner no.1 was married to Dr. Rajan, the  younger brother of respondent Dr. T.C. Sidhan and they were living  together in England. Mrs. Rani Sidhan, the sister of the petitioner no.1  died issueless. Therefore, the petitioner no.1 contended that she is the  legal heir of her sister Mrs. Rani Sidhan under Section 15(2)(a) of the  Hindu Succession Act, 1956 (in short the ’Succession Act’). She alleged  that the respondent Dr. T.C. Sidhan, who has absolutely no right in the  schedule property, taking advantage of the position that he was the  husband of Mrs. Rani Sidhan, illegally occupied the property, and that  he was likely to commit waste and cause damage to the property.  As per  the ex parte order in IA No. 363/1996 filed by the petitioner no.1  seeking appointment of a Curator, the lower court appointed a Curator on  20.2.1996 and directed him to take immediate possession of the property.   Accordingly, he took possession of the property from the respondent Dr.  T.C. Sidhan. Though the order appointing the Curator by the lower court  was challenged before the High Court in C.M.A. No. 111/96, the said  Court did not interfere with the order as the Curator had already taken  possession of the property and directed the lower court to conduct an  enquiry under Section 194 of the Act.

       The case of the respondent Dr. T.C. Sidhan was that as per the  joint Will executed by him and his wife Mrs. Rani Sidhan, he is the sole  heir of all her assets and her share in the schedule property devolved  upon him and accordingly he is entitled to be in possession of the  schedule property as the person who is entitled to half share in the  properties.

       The District Court, Kozhikode in Succession O.P. No. 38 of 96 by  judgment dated 30.3.2001 came to hold that the alleged Will was proved,  directing further the discharge of the Curator and to audit all accounts  and property and directed to handover possession to respondent Dr. T.C.  Sidhan.  As the High Court did not interfere with said order, this  appeal has been filed.

       According to Mr. K.K. Venugopal, learned Senior Counsel the  judgments of the District Court, Kozhikode and the High Court suffer  from irreparable infirmities.  In the proceeding under Section 192 of

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the Act, there was no scope for adjudicating the genuineness of the  Will, on the face of several orders passed by various courts including  High Court of Kerala and this Court.  The proceedings are summary in  nature.  It is to be noted that the so-called attesting witnesses did  not in anyway prove execution of the Will. Earlier an application was  filed for examining one of the attesting witnesses on commission and the  same was rejected by the District Judge.  The genuineness of the Will  has to be established by filing of suit and a proceeding under Section  192 of the Act is no substitute.  Though these aspects were highlighted  before the High Court, which proceeded on erroneous impression that as  the party had consented for adjudication of the issue, there was no  error.  The conclusion was clearly erroneous in view of the stand taken  by the appellants at various stages and acceptance thereof by various  courts including this Court that the issue whether the Will was genuine  has to be adjudicated in an appropriate proceeding.  The learned  District Judge, himself has held so only a few months before.  Even in  the grounds before the High Court, it is specifically stated so.  But  the High Court overlooked all these salient features and rejected the  revision application by holding that the jurisdiction was discretionary.  There is no reason indicated to justify the conclusion as to why in a  case of this nature, where substantial questions of law were involved  interference was not warranted.  After having observed that consent  cannot confer jurisdiction, the High Court completely overlooked the  various orders passed which had clearly directed that the genuineness of  the Will was to be established in an appropriate proceeding.  It was  submitted that the fallacy in the conclusions of the District Judge as  well as the High Court are apparent because the whole house was directed  to be handed over to respondent Dr. T.C. Sidhan when admittedly even  according to the respondent half share therein belongs to the appellant  no.1. It was submitted that till an appropriate adjudication is made,  the property can be handed over to the appellant no.1 on condition that  she will deposit mesne profits in Court; otherwise there is likelihood  of the property being passed on to strangers and the same being an  ancestral house, it would be not only be improper, but inequitable, to  keep out direct descendant in preference to distant relative or total  third party outsiders.

       In response, learned counsel for the respondents submitted that  while making adjudication under Section 192 of the Act which appears in  part VII of the Act relating to protection of property of deceased,  there has to be finding recorded as regards the rival claims and a prima  facie view on the question of lawful title has to be rendered and that  is what has been done; the appellant having consented in an adjudication  by the District Court cannot turn around and say that there was no  consent.  When the Court has recorded such a finding it is not open to  be questioned before the higher court.  The decision is not one on title  but on the question of possession.  Section 209 deals with the fate of  such decision.  Strong reliance was placed on Clarence Pais and Ors. v.  Union of India (2001 (4) SCC 325); more particularly, para 6 where it  has been observed that Will can be looked into for some purposes. As  there was a direction for disposal of the matter by the District Court  within a particular time, it was but necessary to record the decision on  the question of prima facie title and the judgments of the Trial Court  and the High Court need no interference.   

       Will is a translation of the Latin word "voluntas", which was a  term used in the text of Roman Law to express the intention of a  testator. It is of significance that the abstract term has come to mean  that document in which the intention is contained.  The same has been  the case with several other English law terms, the concrete has  superseded the abstract-obligation, bond, contract, are examples  (Williams’ Wills and Intestate Succession, page 5). The word ’testament’  is derived from "testatio menties’, it testifies the determination of  the mind. A Will is thus defined by Ulpians’s "Testamentum est mentis  nostraejusta contestatio in id sollemniter facta to post martem nostrum

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valeat." Modastinus defines it by means of volantas.  It is "voluntatis  nostrae just sententia de co quod quis post mortem suam fietei vult (or  velit)"; the word "justa" implying in each, that, in order to be  valid, the testament must be made in compliance with the forms of law.  It means, "the legal declaration of a man’s intentions, which will be  performed after his death".  A last Will and testament is defined to be  "the just sentence of our Will, touching what we would have done after  our death".  Every testament is consummated by death, and until he  dies, the Will of a testator is ambulatory. Nam omne testamentum morte  consummatum est; et voluntae testamentoric est embulatoria usque od  mortem.  (For, where a testament is, there must also of necessity be  death of testator.  For, a testament is of force after men are dead;  otherwise it is of no strength at all while the testator liveth). A  "Will", says Jarman, "is an instrument by which a person makes a  disposition of his property to take effect after his decease, and which  is in its own nature ambulatory and revocable during his life".   (Jarman, on Wills, Ist Edn., p.11). This ambulatory character of a Will  has been often pointed out as its prominent characteristic,  distinguishing it, in fact, from ordinary disposition by a living  person’s deed, which might, indeed postpone the beneficial possession or  even a vesting until the death of the disposer and yet would produce  such postponement only by its express terms under an irrevocable  instrument and a statement that a Will is final does not import an  agreement not to change it. (Schouler’s Law of Wills, S. 326).  A Will  is the aggregate of man’s testamentary intentions so far as they are  manifested in writing, duly executed according to the Statute. (Per Lord  Penzance in Leimage v. Goodbhan, L.R. 1 P. & D. 57, cited by Fry. J., in  Green v. Tribe, (1878) 9 Ch D 231). In N.D. Bani’s Law of Succession  (Sixth Edition) also about position has been delineated.  From various  decisions of the this Court e.g. Ram Gopal v. Nand Lal (AIR 1951 SC  139), Gnambal Ammal v. Raju Ayyar (AIR 1951 SC 103), Raj Bajrang Bhadaur  Singh v. Thakurain Bakhtraj Kher (1953 SC 7), Pearey Lal v. Rameshwar  Das (AIR 1963 SC 1703), Ramchandra v. Hilda Brite, (AIR 1964 SC 1323)  and Navneet Lal v. Gokul (AIR 1976 SC 794), the following principles are  well established:

(1)     In construing a document whether in English or in vernacular the  fundamental rule is to ascertain the intention from the words used; the  surrounding circumstances are to be considered; but that is only for the  purpose of finding out the intended meaning of the words which have  actually been employed.

(2)     In construing the language of the Will the Court is entitled to  put itself into the testator’s armchair and is bound to bear in mind  also other matters than merely the words used.  It must consider the  surrounding circumstances, the position of the testator, his family  relationship the probability that he would use words in a particular  sense.  But all this is solely as an aid to arriving at a right  construction of the Will and to ascertain the meaning of its language  when used by that particular testator in that document.

(3)     The true intention of the testator has to be gathered not by  attaching importance in isolated expressions but by reading the Will as  a whole with all its provisions and ignoring none of them as redundant  or contradictory.

(4)     The Court must accept, if possible such construction as would give  to every expression some effect rather than that which would render any  of the expressions inoperative.  The Court will look at the  circumstances under which the testator makes his Will, such as the state  of his property of his family and the like. Where apparently conflicting  dispositions can be reconciled by giving full effect to every word used  in a document, such a construction should be accepted instead of a  construction which would have the effect of cutting down the clear  meaning of the words used by the testator.  Further where one of the two

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reasonable constructions would lead to intestacy, that should be  discarded in favour of a construction which does not create any such  hiatus.

(5)     To the extent that it is legally possible, effect should be given  to every disposition contained in the Will unless the law prevents  effect being given to it.  Of course, if there are two repugnant  provisions conferring successive interests, if the first interest  created is valid the subsequent interest cannot take effect but a Court  of construction will proceed to the farthest extent to avoid repugnancy  so that effect could be given as far as possible to every testamentary  intention contained in the Will.

        In Kalvelikkal Ambunhi v. H. Ganesh Bhandary (AIR 1995 SC 2491),  it was observed that a Will may contain several clauses and the latter  clause may be inconsistent with the earlier clause.  In such a  situation, the last intention of the testator is given effect to and it  is on this basis that the latter clause is held to prevail over the  earlier clause.  As observed in Hammond v. Treharne, (1938 (3) All ER  308), if in a Will there are two inconsistent provisions, latter shall  prevail over the earlier clause.  This is regulated by the well-known  maxim "cum duo inter se pugantia reperiuntur in testamenta ultimum  ratum est".  This principle is also contained in Section 88 of the Act  which together with its illustrations, provides as under:

"88. The last of two inconsistent clauses prevails.  - Where two clauses of gifts in a Will are  irreconcilable, so that they cannot possibly stand  together, the last shall prevail.

Illustrations

(i)     the testator by the first clause of his Will leaves his estate of  Ramnagar to "A", and by the last clause of his Will leaves it to "B"  and not to A". B will have it.

(ii)    if a man, at the commencement of his Will gives his house to A and  at the close of it directs that his house shall be sold and the proceeds  invested for the benefit of B, the latter disposition will prevail.

       This rule of interpretation can be invoked if different clauses  cannot be reconciled.  (See Rameshwar v. Balraj, AIR 1935 PC 187). It is  to be noted that rules of interpretation of Will are different from  rules which govern interpretation of other documents like sale deed, or  a gift deed, or a mortgage deed or, for that matter, any other  instrument by which interest in immovable property is created. While in  these documents, if there is any inconsistency between the earlier or  the subsequent part or specific clauses, inter se contained therein, the  earlier part will prevail over the latter as against the rule of  interpretation applicable to a Will under which the subsequent part,  clause or portion prevails over the earlier part on the principle that  in the matter of Will the testator can always change his mind and create  another interest in place of the bequest already made in the earlier  part or on an earlier occasion. Undoubtedly, it is the last Will which  prevails.

       What is the intention of the testator has to be found out on a  reading of the Will and there cannot be any hard and fast rule of  uniform application to find out as to whether the grant was absolute or  it was subject to any condition or stipulation.  The true intention of  the testator has to be gathered not only by attaching importance to

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isolated expressions but by reading the Will as a whole with all the  provisions and ignoring none of them as redundant or contradictory. As  observed in Navneet Lal’s case (Supra), although there is no binding  rule that the Court should avoid intestacy at any cost, yet the Court  would be justified in preferring that construction of the Will which  avoids intestacy. Where the words are ambiguous attempt should be made  to avoid that construction which leads to intestacy.

       It is seldom profitable to compare the words of one Will with  those of another or to attempt to find out to which of the Wills, upon  which decisions have been given in reported cases, the Will before the  Court approximates closely.  Cases are helpful only in so far as the  purport to lay down certain general principles of construction and at  the present these principles seem to be fairy well settled. The cardinal  maxim to be observed by Courts in construing a Will is to endeavour to  ascertain the intention of the testator. This intention has to be  gathered primarily from the language of the document which is to be read  as whole without indulging in any conjecture or speculation as to what  the testator would have done if he had been better informed or better  advised (See Gnanmbal’s case (supra). In construing the Will the Court  must consider the surrounding circumstances. The testator’s position,  his family relationship, the probability that he would use his words in  a particular sense and many other things summed up in the picturesque  phrase. The Court should put itself in the testator’s armchair (See  Veerattalingam v. Rameth AIR 1990 SC 2201).                                                                                       

Section 63 of the Act deals with execution of unprivileged Wills.  It lays down that the testator 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.  It further lays down that the Will shall be attested by  two or more witnesses, each of whom has seen the testator signing or  affixing his mark to the Will or has seen some other person sign the  Will, in the presence and by the direction of the testator and each of  the witnesses shall sign the Will in the presence of the testator.  Section 68 of the Indian Evidence Act, 1872 (in short the ’Evidence  Act’) mandates examination of one attesting witness in proof of a Will,  whether registered or not.  The law relating to the manner and onus of  proof and also the duty cast upon the Court while dealing with a case  based upon a Will has been examined in considerable detail in several  decisions of this Court [See  H. Venkatachala Iyengar v. B.N.  Thimmajamma and Ors. (AIR 1959 SC 443), Rani Purnima Debi and Anr. v.  Kumar Khagendra Narayan Deb and Anr. (AIR 1962 SC 567) and Shashi Kumar  Banerjee and Ors. v. Subodh Kumar Banerjee and Ors. (AIR 1964 SC 529)].  A Constitution Bench of this Court in Shashi Kumar Banerjee’s  case  (supra) succinctly indicated the focal position in law as follows:

"The mode of proving a Will does not ordinarily  differ from that of proving any other document  except as to the special requirement of attestation  prescribed in the case of a Will by Section 63,  Succession Act.  The onus of proving the Will is on  the propounder and in the absence of suspicious  circumstances surrounding the execution of the  Will, proof of testamentary capacity and the  signature of the testator as required by law is  sufficient to discharge the onus.  Where however  there are suspicious circumstances, the onus is on  the propounder 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

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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 grant probate, even if the Will  might be unnatural and might cut off wholly or in  part near relations."

       A Will is executed to alter the ordinary mode of succession and by  the very nature of things it is bound to result in either reducing or  depriving the share of natural heir. If a person intends his property to  pass to his natural heirs, there is no necessity at all of executing a  Will.  It is true that a propounder of the Will has to remove all  suspicious circumstances. Suspicion means doubt, conjecture or mistrust.   But the fact that natural heirs have either been excluded or a lesser  share has been given to them, by itself without anything more, cannot be  held to be a suspicious circumstance especially in a case where the  bequest has been made in favour of an offspring.  As held in PPK Gopalan  Nambiar v. PPK Balakrishnan Nambiar and Ors. (AIR 1995 SC 1852) it is  the duty of the propounder of the Will to remove all the suspected  features, but there must be real, germane and valid suspicious features  and not fantasy of the doubting mind. It has been held that if the  propounder succeeds in removing the suspicious circumstance, the Court  has to give effect to the Will, even if the Will might be unnatural in  the sense that it has cut off wholly or in part near relations (See  Puspavati and Ors. v. Chandraja Kadamba and Ors. (AIR 1972 SC 2492). In  Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs.  and Ors. (1995 (4) SCC 459), it was observed that the circumstance of  deprivation of natural heirs should not raise any suspicion because the  whole idea behind execution of the Will is to interfere with the normal  line of succession and so, natural heirs would be debarred in every case  of Will. Of course, it may be that in some cases they are fully debarred  and in some cases partly.   

       Now, we shall deal with the scope of Section 208. The object of  Part VII of the Act is to protect the property appertaining to large  estates in case of a dispute as to succession. This Part in some respect  stands in a similar position to Section 145 of the Code of Criminal  Procedure, 1973 (in short the ’Code’) with respect to certain specified  properties, where its scope is large in as much as it embraces all  properties movable and immovable and once for all it settles the right  to hold possession of the property summarily directing the order  disputants to seek their remedy in proper Court. (See Biso Ram v.  Emperor (66 Ind. Cases 76). A person aggrieved by an order passed in a  summary proceeding under Part VII, should seek remedy by a suit and not  by an application for revision. This remedy is preserved by this  Section. (See Gouri Shankar v. Debi Prasad (AIR 1929 Nag. 317). The suit  should be a suit for possession by establishment of title (See Bhoba  Tarani v. Profulla (140 Ind. Cas.379). Therefore, it should necessarily  be by the person who need to establish his title to claim any such  possession on the basis of title.

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       By analogy to Order XXI, Rule 63, it can be said that where an  adverse order has been passed against the plaintiff, under Section 194  of the Act, the onus lies heavily on the plaintiff to show that he has a  right which has been demised by the decision under Section 194 [See  Dhirendra v. Indra Chandra (AIR 1939 Calcutta 571); Mahammad Ali v.  Bismilla Begam (AIR 1930 P.C. 255); Sahadi v. Usman Ali (184 Ind.Cas.  113); Ahmad v. Partap (AIR 1939 Lahore 438); Md. Ismail v. Hanuman (AIR  1939 P.C. 290); Bavamma v. Papanna (AIR 1936 Madras 971).                                              Coming to the scope and ambit of Sections 192, 193, 194 and 195 it  is to be noted that they form a part of Chapter XIII dealing with the  modalities to be adopted for protection of properties of the deceased  being covered by Part VII. These proceedings are essentially  interlocutory in character and necessarily summary depending upon the  filing of an application for relief seeking the Court to determine who  has a right to possession pending the final determination of the rights  of the parties in a regular suit.          Section 192, inter alia, provides that a person who claims right  by succession can make an application in respect of a property, movable  or immovable, left behind a person who has died. Section 193 provides  for an enquiry by the District Judge to whom such an application is made  and Section 194 deals with the procedure to be adopted when an  application is made under Section 192.   

       The Court before taking any steps in the matter under Section 194  is required to be satisfied of the existence of such strong ground of  belief on both points i.e. the person in possession has no lawful title  and that the person applying is likely to be materially prejudiced if  left to the ordinary remedy of a regular suit. An order under Section  194 is in nature of summary decision and can only be passed if the  conditions embodied in Section 193 are fulfilled. The expression  "subject to a suit" means subject to a suit contemplated under Section  208 i.e. a regular suit to establish title and obtain possession.  

       The effect of a summary decision even in an extreme case is not a  bar to a regular suit. The underlying object of Section 208 and Part VII  is particularly to protect the property appertaining to large estates in  case of a dispute as to succession. As noted above, it has a great  similarity to a proceeding under Section 145 of the Code  with respect  to certain specified properties where its scope is large in as much as  it embraces all properties movable and immovable and once for all it  settles the right to hold possession of the property summarily directing  the other disputants to seek their remedy in proper Court by appropriate  proceedings. A person aggrieved by an order passed by a summary  proceeding under Part VII is required to seek remedy by a suit and not  by an application for revision. This remedy is preserved by Section 208.  Section 209 makes the position further clear. It provides that the  decision of a District Judge in a summary proceeding under Part VII  shall have no other effect than that of settling the actual possession,  but for this purpose it shall be final and shall not be subject to any  appeal or review. But where instead of a summary disposal, there is in  depth analysis of the evidence and conclusive conclusions/decisions  arrived at it cannot be said that there has been a proper exercise of  the power conferred while dealing with an application under Section 192  of the Act.  

       In the case at hand by several orders/judgments on earlier  occasions/stages it has been specifically held that the genuiness of the  Will has to be established in a regular suit. While dealing with an  application under Section 192 of the Act, obviously there has to be some  consideration of the genuineness of the Will. But it cannot be in a  conclusive and detailed manner as has been done in this case. Further,  when admittedly half of the share in the property indisputably belonged  to appellant No.1, the District Judge while dealing with an application  under Section 192 could not have either ventured to undertake even a

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summary decision of a disputed title of the respondent or even delivered  possession of the whole property to original respondent no.1 in  preference to the person whose title and claims are beyond controversy  at least in respect of her half share. This itself shows that the  consideration was not proper and the entire exercise wholly  impermissible. The High Court dismissing the revision petition holding  that the jurisdiction was discretionary, is to put it even in mild  terms, a serious error and misdirection virtually placing a premium on  grave illegality committed resulting in miscarriage of justice.    Discretion, in general, is the discernment of what is right and  proper.  It denotes knowledge and prudence, that discernment which  enables a person to judge critically of what is correct and proper  united with caution; nice discernment, and judgment directed by  circumspection; deliberate judgment; soundness of judgment; a science or  understanding to discern between falsity and truth, between wrong and  right, between shadow and substance, between equity and colorable  glosses and pretences, and not to do according to the will and private  affections of persons. When it is said that something is to be done  within the discretion of the authorities, that something is to be done  according to the rules of reason and justice, not according to private  opinion; according to law and not humour. It is to be not arbitrary,  vague, and fanciful, but legal and regular.  And it must be exercised  within the limit, to which an honest man, competent to the discharge of  his office ought to confine himself (Per Lord Halsbury, L.C., in Sharp  v. Wakefield, (1891) Appeal Cases 173).  Also (See S.G. Jaisinghani v.  Union of India and Ors. (AIR 1967 SC 1427).   

       The word "discretion" standing single and unsupported by  circumstances signifies exercise of judgment, skill or wisdom as  distinguished from folly, unthinking or haste; evidently therefore a  discretion cannot be arbitrary but must be a result of judicial  thinking. The word in itself implies vigilant circumspection and care;  therefore where the legislature concedes discretion it also imposes a  heavy responsibility.

"The discretion of a Judge is the law of tyrants; it is always  unknown. It is different in different men. It is casual, and depends  upon constitution, temper, passion. In the best it is often times  caprice; in the worst it is every vice, folly, and passion to which  human nature is liable," said (Lord Camden, L.C.J., in Hindson and  Kersey (1680) 8 How, St. Tr.57.)

If a certain latitude or liberty accorded by statute or rules to a  judge as distinguished from a ministerial or administrative official, in  adjudicating on matters brought before him, it is judicial discretion.  It limits and regulates the exercise of the discretion, and prevents it  from being wholly absolute, capricious, or exempt from review.  

Such discretion is usually given on matters of procedure or  punishment, or costs of administration rather than with reference to  vested substantive rights. The matters which should regulate the  exercise of discretion have been stated by eminent judges in somewhat  different forms of words but with substantial identity.  When a statute  gives a judge a discretion, what is meant is a judicial discretion,  regulated according to the known rules of law, and not the mere whim or  caprice of the person to whom it is given on the assumption that he is  discreet (Per Willes J. in Lee v Budge Railway Co., (1871) LR 6 CP 576,  and in Morgan v. Morgan, 1869, LR 1 P & M 644).  

       The principles relating to exercise of discretion judicially do  not appear to have been kept in view by the High Court in this case. The  inevitable result, therefore, is that the order of the High Court  refusing to interfere with the order of the District Judge needs to be  vacated. The Curator should have been directed to deliver possession

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only to the appellants whose rights to half share is indisputable and  beyond controversy, rather than keep out of possession such sharer.  While setting aside the orders of the Courts below, we direct the  possession to be delivered forthwith to the appellants. We also find  substance in the plea of the appellants that this being an ancestral  property with lot of sentiments attached to it, if the possession is  given to the appellants with clear conditions stipulated, that the mesne  profits the claim relating to which is yet to be decided shall be  deposited in Court awaiting final adjudication in the matter.  It shall  be for the respondents to establish the genuiness of the Will in the  manner recognized by law in the appropriate proceeding, and thereafter  seek for possession including the claim for any mesne profits in such  proceedings. It shall not be construed that our interference in the  matter is on the basis of any expression of opinion about merits of the  original dispute i.e. relating to genuiness of the Will but made only  for the limited purpose of setting aside the illegal orders of the  Courts below as to right to possession. As and when, an appropriate suit  is filed the competent Court shall be at liberty to determine the  question of title to the disputed half share of the respondents on its  own merits, on the basis of materials and evidence that may be let in  during trial, uninfluenced by the observations made on such claims in  the orders set aside, as well as those made in this order. The appeal is  allowed in the aforesaid terms. Parties to bear their respective costs.