SHIVAKUMAR & ORS. versus SHARANABASAPPA & ORS.

Citation: [2020] 6 S.C.R. 666 · Decided: 24-04-2020 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Dismissed

Cited by 1 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 6 S.C.R.
SHIVAKUMAR & ORS.
v.
SHARANABASAPPA & ORS.
(Civil Appeal No. 6076 of 2009)
APRIL 24, 2020
[A. M. KHANWILKAR, HEMANT GUPTA AND
DINESH MAHESHWARI, JJ.]
Will – Genuineness of – Plaintiff-Appellants filed a civil suit
for declaration and injunction that they had acquired ownership
rights in the suit properties on the basis of a Will dated 20.05.1991
executed by one ‘S’ and that the Trust created by defendants in
relation to the suit properties was illegal and void – The defendants
questioned the genuineness of the alleged Will – The Trial Court
decided the principal issue related to the Will in favour of the
plaintiffs – However, the High Court reversed the decision of Trial
Court on the principal issue relating to the genuineness of the Will
– On appeal, held: In the instant case, there were unnatural and
unusual features in the document/Will in question – Different sheets
of paper had been used in preparation of Will; placement of the
signatures of the testator was at least at two places beyond normal
distance from the last typed matter; in making of three signatures,
at least two different pens were used; the front facing pages number
1,3 and 5 carried the signatures of the testator, the backside pages,
i.e. pages 2 and 4 were unsigned – Further, several blank spaces
were found in relation to the particulars of the properties and even
some of the properties were not correctly described – There was
recital in the document of a past event (about vacating of the shop
by tenant) in the manner that such event shall happen in future – In
the opening passage of the document, the recital was to the effect
that the testator was making Will because so many accidents do
happen – The fact remain that testator died in an accident on
20.05.1994 and Will was made on 20.05.1991 – That apart, the
plaintiffs never took steps to get the statement of the person, who
was otherwise referred to by all the material witnesses as being the
person before whom the document was allegedly opened – The
unexplained, unusual and abnormal features pertaining to the
document only lead to a logical deduction that the document in
[2020] 6 S.C.R. 666
666
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question was prepared after the demise of the testator ‘S’ with use
of blank signed papers that came in possession of the propounders
and their associates – The High Court was right in reversing the
decision of the Trial Court and in holding that the contested Will
was not a genuine document.
Code of Civil Procedure, 1908 – Or.XLI, rr.23, 23A, 24 and
25 – Order of remand by the Appellate Court – Held: A conjoint
reading of Rules 23, 23A and 24 of Or.XLI brings forth the scope
as also contours of the powers of remand that when the available
evidence is sufficient to dispose of the matter, the proper course for
an Appellate Court is to follow the mandate of r.24 of Or.XLI CPC
and to determine the suit finally – It is only in such cases where the
decree in challenge is reversed in appeal and re-trial is considered
necessary that the Appellate Court shall adopt the course of
remanding case.
Dismissing the appeal, the Court
HELD: 1. The High Court felt dissatisfied with the
document itself and found no explanation on record about
numerous unnatural circumstances dilated upon and discussed
by it in some of the passages extracted hereinbefore. Having
examined the material placed on record, in view of this Court,
the observations and findings of the High Court remain
unexceptionable. [Para 14][706-G]
2. At least four unusual features of the document in question
are evident on the face of the record. To recapitulate, the disturbing
unusual features of the document in question are that: (i) it is
typewritten on 3 different sheets of paper; (ii) the placement of
signatures of the testator is not of uniformity and excessive space
is seen between the typewritten contents and the signatures on
page number 1 and page number 5; (iii) different pens have been
used for signatures on different pages with ink pen having been
used for first and third signatures (on page number 1 and page
number 5) and ballpoint pen having been used for the second
signature (on page number 3); and (iv) all the typewritten pages
do not carry the signatures of the testator, with there being no
signature on page number 2 and page number 4. It does not
require any great deal of elaboration that in the ordinary, normal
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
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