# S.R. SRINAVASA AND ORS v. S. PADMAVATHAMMA

- **Citation:** [2010] 4 S.C.R. 981
- **Court:** Supreme Court of India
- **Decided:** 2010-04-22
- **Case number:** Civil Appeal No. 4623 of 2005
- **Bench:** V.S. Sirpurkar, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-r-srinavasa-and-ors-v-s-padmavathamma-26987
- **Pages:** 61

## Headnote

Will:
A
B
Execution of Will and its genuineness - Burden to prove c
- HE1ld: The initial burden is on the propounder to remove all
the reasonable doubts -
Presence of suspicious
circumstances make initial burden heavier - Will in respect
of suit property in favour of one of the daughter - No reason
given as to why the other legal heirs were excluded from
0
inheritance - None of the attesting witnesses examined - No
reason given as to why the Will was presented before the SubRegistrar on two separate occasion for registration - Nonex amination of Sub-Registrar - Active participation of sole
beneficiary in writing and registering the Will - Cumulative
E
effect of all the circumstances would create suspicion about
genuineness of Will - Registration by itself not sufficient to
remove suspicion - Such suspicion cannot be removed by
mere assertion of propounder that the Will bore signature of
testator or that the testator was in sound and disposing state
F
of mind at the time of making Will - Thus, Will not proved to
be genuine - Evidence Act, 1882 -
ss. 63, 68 -
Hindu
Succession Act, 1956 - s.15(2)(a).
Attesting witness - Scribe of a Will - Held: Does not
become attesting witness - It is essential that the witness G
should put his signature animo attestandi, that is for the
purpose of attesting that he saw executant sign - If a person
puts his signature _on the document to certify that he is a scribe
or an identifier or a registering officer then he is not signing
981
H
982
,
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A in the capacity of an attesting witness - Evidence Act, 1882
- ss. 63, 68 - Witness.
The suit property devolved upon 'P' who was the
mother of plaintiff and defendant 4 after death of their
8 father. One of the sisters of plaintiff, 'I' was staying with
the mother and looking after mother till she died .. 'I'
continued to be in possession of suit property. When 'I'
died, her cremation was performed by her cousin, the
defendant 1. Thereafter, Defendant 1 remained in
C possession of suit property and inducted defendant 2
and 3 as tenant.
The plaintiff filed a suit for declaration that she and
defendant 4 were the absolute owner of the suit property.
The defence of defendant 1 was that on 18.6.197 4, the
D mother of plaintiff had executed Will in favour of 'I', and
since there was no intestate succession, neither the
plaintiff nor the defendant 4 could succeed to the suit
property. The trial court dismissed the suit holding that
the plaintiffs did not seriously dispute the execution of
E Will by 'P' in favour of 'I' and in fact admitted the execution
of the Will in a subsequent suit being O.S. no. 233 of 1998
which was filed by the appellants as the legal heirs of the
plaintiff. The first appellate court reversed the judgment
of trial court. On appeal, High Court restored the
F judgment of trial Court. Hence the appeal.
Allowing the appeal, the Court
HELD: 1.1. It is not disputed that respondent No.1
was a rank outsider. He was not a lineal descendant of
G 'P'. He was son of P's sister. The property would be
inherited by the appellants under Section 15(2) of the
Hindu Succession Act if the Will dated 18.6.1974 was held
not to be genuine. The basic aim of Section 15(2) is to
ensure that inherited property of an issueless female
H
S.R. SRINAVASA AND ORS. v. S.
983
PADMAVATHAMMA
Hindu dying intestate goes back to the source. It was
A
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. [Paras 18, 19, 21] [997-F; 998-D-E; 999-DE]
B
State of Punjab v. Ba/want Singh 1992 Supp (3) SCC
108; V. Dandapani Chettiar v. Balasubramanian Chettiar
(2003) 6 sec 633, relied on.
Jayanti/al Mansukh/al and another v. Mehta Chhana/a/ C
Amba/al AIR 1968 Gujarat 212; Palanivelayutham Pillai and
others v. Ramachandran and others (2000) 6 SCC 151;
Somnath Berman v. Dr SP. Raju and another AIR 1970 SC
846; Smt. Jaswant Kaur v. Smt.

## Text

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[2010] 4 S.C.R. 981
S.R. SRINAVASA AND ORS.
v.
S. PADMAVATHAMMA
(Civil Appeal No. 4623 of 2005)
APRIL 22, 2010
[V.S. SIRPURKAR AND SURINDER SINGH NIJJAR, JJ.]
Will:
A
B
Execution of Will and its genuineness - Burden to prove c
- HE1ld: The initial burden is on the propounder to remove all
the reasonable doubts -
Presence of suspicious
circumstances make initial burden heavier - Will in respect
of suit property in favour of one of the daughter - No reason
given as to why the other legal heirs were excluded from
0
inheritance - None of the attesting witnesses examined - No
reason given as to why the Will was presented before the SubRegistrar on two separate occasion for registration - Nonex amination of Sub-Registrar - Active participation of sole
beneficiary in writing and registering the Will - Cumulative
E
effect of all the circumstances would create suspicion about
genuineness of Will - Registration by itself not sufficient to
remove suspicion - Such suspicion cannot be removed by
mere assertion of propounder that the Will bore signature of
testator or that the testator was in sound and disposing state
F
of mind at the time of making Will - Thus, Will not proved to
be genuine - Evidence Act, 1882 -
ss. 63, 68 -
Hindu
Succession Act, 1956 - s.15(2)(a).
Attesting witness - Scribe of a Will - Held: Does not
become attesting witness - It is essential that the witness G
should put his signature animo attestandi, that is for the
purpose of attesting that he saw executant sign - If a person
puts his signature _on the document to certify that he is a scribe
or an identifier or a registering officer then he is not signing
981
H
982
,
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A in the capacity of an attesting witness - Evidence Act, 1882
- ss. 63, 68 - Witness.
The suit property devolved upon 'P' who was the
mother of plaintiff and defendant 4 after death of their
8 father. One of the sisters of plaintiff, 'I' was staying with
the mother and looking after mother till she died .. 'I'
continued to be in possession of suit property. When 'I'
died, her cremation was performed by her cousin, the
defendant 1. Thereafter, Defendant 1 remained in
C possession of suit property and inducted defendant 2
and 3 as tenant.
The plaintiff filed a suit for declaration that she and
defendant 4 were the absolute owner of the suit property.
The defence of defendant 1 was that on 18.6.197 4, the
D mother of plaintiff had executed Will in favour of 'I', and
since there was no intestate succession, neither the
plaintiff nor the defendant 4 could succeed to the suit
property. The trial court dismissed the suit holding that
the plaintiffs did not seriously dispute the execution of
E Will by 'P' in favour of 'I' and in fact admitted the execution
of the Will in a subsequent suit being O.S. no. 233 of 1998
which was filed by the appellants as the legal heirs of the
plaintiff. The first appellate court reversed the judgment
of trial court. On appeal, High Court restored the
F judgment of trial Court. Hence the appeal.
Allowing the appeal, the Court
HELD: 1.1. It is not disputed that respondent No.1
was a rank outsider. He was not a lineal descendant of
G 'P'. He was son of P's sister. The property would be
inherited by the appellants under Section 15(2) of the
Hindu Succession Act if the Will dated 18.6.1974 was held
not to be genuine. The basic aim of Section 15(2) is to
ensure that inherited property of an issueless female
H
S.R. SRINAVASA AND ORS. v. S.
983
PADMAVATHAMMA
Hindu dying intestate goes back to the source. It was
A
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. [Paras 18, 19, 21] [997-F; 998-D-E; 999-DE]
B
State of Punjab v. Ba/want Singh 1992 Supp (3) SCC
108; V. Dandapani Chettiar v. Balasubramanian Chettiar
(2003) 6 sec 633, relied on.
Jayanti/al Mansukh/al and another v. Mehta Chhana/a/ C
Amba/al AIR 1968 Gujarat 212; Palanivelayutham Pillai and
others v. Ramachandran and others (2000) 6 SCC 151;
Somnath Berman v. Dr SP. Raju and another AIR 1970 SC
846; Smt. Jaswant Kaur v. Smt. Amrit Kaur and others AIR
1977 SC 7 4, referred to.
D
1.2. By virtue of Section 15(2)(a) of the Act, the
appellants would inherit the property in dispute. This right
was sought to be defeated by defendant No.1 on the basis
of the Will dated 18.6.197 4, allegedly executed by 'P'.
E
Defendant No.1 claimed that the plaintiffs cannot 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 dury executed, and proved to be
genuine. [Para 23] [1001-G-H; 1002-A]
H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959
Supp (1) SCR 426; Jaswant Kaur v. Amrit Kaur (1977) 1
sec 369, relied on.
F
1.3. None of the attesting witnesses were examined.
G
The scribe, who was examined as DW.2, did not state that
he had signed the Will with the intention to attest. In his
evidence, he 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. It is essential that the
H
984
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A witness should have put his si9nature 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.,
B to ce1tify that he is a scribe or an identifier or a registering
offic~r, he is not an attesting witness. The said test was
not satisfied by DW.2 the scribe. The effect of subscribing
a signature on the part of the scribe cannot be identified
to be of the same status as that of the attesting
c witnesses. [Paras 26, 27] [1004-B-H]
ML. Abdul Jabbar Sahib v. M. V. Venkata Sastri & Sons
(1969) 1 SCC 573; N. Kama/am v. Ayyasamy (2001) 7 SCC
503, relied on.
D
2.1. 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 PW-1. 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
E successfully withdrawn or proved to be erroneous. The
High Court erred in holding 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 was no admission except that 'P' had executed
F a Will bequeathing only the immovable properties
belonging to her in favour of 'I'. The First Appellate Court
correctly obs~rved that the said admission was .only
about the making of the Will and not the genuineness of
the Will. The statements contained in the plaint as well as
G 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. The First Appellate Court on analysis
of the entire evidence clearly recorded cogent reasons
to conclude that the execution of the Will was
H
S.R. SRINAVASA AND ORS. v. S.
985
PADMAVATHAMMA
surrounded by suspicious circumstances. [Paras 31, 35,
A
36] [1006-D; 1007-H; 1008-A-F]
Narayan Bhagwantrao Gosavi Ba/ajiwale v. Gopal
Vinayak Gosavi (1960) 1 SCR 773; Nagindas Ramdas v.
Da/patram lchharam (1974) 1 SCC 242; Gautam Sarup v.
B
Leela Jetty (2008) 7 sec 85, relied on.
2.2. It was noticed by the First Appellate Court that
although 'P' was allotted certain specific property, there
was no recital in the Will as to which of the properties
were bequeathed to 'I'. Non-description of the schedule
C
property creates a reasonable suspicion as to whether
'P' executed the Will. It was noticed that if she had the
intention of bequeathing all her property to 'I', she would
have mentioned the details of all the properties which
belonged to her in the Will. The First Appellate Court D
further held that no reason was given as to why the Will
was presented before the Sub Registrar on two separate
occasions for registration. Although the son of 'P' died
after having been divorced from his wife he is described
in the Will as a bachelor. No reason was stated in the Will
E
as to why the other two daughters were excluded from
the property by 'P'. Since the suspicious circumstances
were not explained by defendant No.1, the Will was not
genuine. The First Appellate Court also noticed that
although 'I' was the sole beneficiary in the Will, she was
F
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
'I' had an evil eye on the suit property and, therefore, the
descriptions of the other properties were not given. The
G
active participation of 'I' in the writing and the registration
of the Will may well create a suspicion about its
genuineness.
Since
there
were
susp1c1ous
circumstances, it was necessary for the defendants to
H
986
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A explain the same. The registration of the Will by itself was
not sufficient to remove the suspicion. The first appellate
court also noticed 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
s evitlence. DW2, who was examined was the scribe of the
Will, gave no plausible reasons as to why the Will was
presented twice before the Sub Registrar for registration.
Nor was it stated by this witness as to why the Will was
not registered on the first occasion. It was also held by
c the First Appellate Court that non-examination of the Sub
Registrar created suspicion about the genuineness of
the Will. Even the attesting witnesses to the Will were not
examined. There was no evidence whether the Will was
read over by the Sub Registrar or anybody else '( ~ore it
0 was registered. It was 1•·•1 ,, "'"•r>ad as to tiow the Will
came into possession of defendant No.1. There was no
evidence when he was put in proper custody of the Will.
Considering the cumulative effect of all the
circumstances, the First Appellate Court correctly held
E that execution of the Will was surrounded by suspicious
circumstances. [Paras 38-39] [1009-B-G; 1010-C-G]
Ramachandra v. Champabia AIR 1965 SC 357, relied
on.
F
3. The High Court in its judgment seemed to have
misread the entire evidence. The said findings recorded
by the First Appellate Court were brushed aside by
dubbing them as conjectural. The High court ought to
have taken great care to satisfy its judicial conscience
G that the execution of the Will was not surrounded by.
suspicious 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
H
S.R SRINAVASA AND ORS. v. S.
987
PADMAVATHAMMA
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. [Paras 40-42) (1011-A-C; 1012-0-E]
Case Law Reference:
AIR 1968 Gujarat 212
referred to
Para 14
(2000) 6 sec 151
referred to
Para 14
AIR 1970 SC 846
referred to
Para 17
AIR 1977 SC 74
referred to
Para 17
1992 Supp (3) sec 108 relied on
Paras 14, 21
(2003) 6 sec 633
relied on
Paras 14, 22
(1959) Supp 1 SCR 426 relied on
Para 25
(1977) 1 sec 369
relied on
Para 25
(1969) 1 sec 573
relied on
. Para 26
(2001) 1· sec 503
relied on
Paras 14, 27
(1960) 1 SCR 773
relied on
Paras 16, 32
(1974) 1 sec 242
relied on
Paras 16, 33
(2008) 1 sec 85
relied on
Paras 16, 34
AIR 1965 SC 357
relied on
Para 38
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4623 of 2005.
A
B
c
D
E
F
From the Judgment & Order dated 2.9.2003 of the High
G
Court of Karnataka at Bangalore in R.S.A. No. 641 of 2003 .
.
~.N. Bhat for the Appellant.
Nand Kishore (for P.P. Singh) for the Respondent.
H
988
SUPREME COURT REPORTS
[2010) 4 S.C.R.
A
The Judgment of the Court was delivered by
SUF~INDER SINGH NIJJAR, J. 1.This appeal by special
leave has been filed by the legal heirs of the origin()I plaintiff,
Lalithamma. OS No.195 of 1986 had been filed by La_lithamma
8
in the Court of Civil Judge, Mysore which was subsequently renumbered 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
C plaintiffs against the aforesaid judgment was allowed. The suit
filed by the plaintiffs was decreed as prayed. The High Court,
however, in regular 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
D plaintiffs-appellants 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
E claimed that Puttathayamma was wife of Sivaramaiah who predeceaseci 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
issuelesi; in 1973 and Smt. Kamalamma (daughter) also died
F issueles!i in 1998. She was impleaded as defendant No.4 in
this suit. Smt. lndiramma was the 4th child. She also died
issuelesB 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
G Subbaramaiah. Upon the death of Puttathayamma, the
deceasE!d plaintiff, defendant No.4, Kamalamma and
lndiramrna inherited her property. During her :ife time,
Puttathayamma was living with lndiramma. Upon her death,
lndiramrna continued to be in possession of the property. The
dispute about the property arose soon after the death of
ti lndiramma.
S.R. SRINAVASA AND ORS. v. S.
989
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
3. Since the original plaintiff - Lalithamma and defendant
A
No.4 were residing outside, they did not come to know about
the death of their sister, lndiramma. Defendant No.1 claiming
to be close relative of deceased lndiramma organized and
performed her cremation ceremony. The house in which
lndiramma was residing i.e., schedule property contained a lot
B
of movable properties such as gold and silver jewellery and
other articles which were of considerable vcilue. 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 c
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
D
had been kept by lndiramma 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 ttie
first defendant had taken heavy advances from defendants No.2
E
and 3 and put them in possession of different portions of the
schedule property as tenant. He had _!>een recovering heavy rent
from defendants No.2 and 3. During the pendency of the suit,
defendants No.2 and 3 vacated the suit schedule property.
Later, defendant no 5 was put in possession of the property.
F
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
G
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
H
990
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A 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
8
No.1 thal: Puttathayamma had executed a Will on 18.6.1974 in
favour of lndiramma. Cons~quently, there was no intestate
succession. Testamentary succession devolved on late
lndiramma. Therefore, neither the plaintiffs nor the 4th defendant
could succeed to the properties of Puttathayamma at all. During
C the life time of lndiramma .. her sister did not care to even look
after her. The moment she died, they have claimed to be heirs
of her estate. Defendant No.1, on the other hand, is the son of
Seetharnma, 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
D lndiramrna. 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 lndiramma was
the secc1nd wife of one Chalapati Rao, who pre-deceased tier.
E Althoμgh Chalapati Rao did not beget any children with
lndiramrna, he died leaving four sons and two daughters from
his first wif~ 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
F 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 defondant in respect of the schedule property. Upon
G receiving Rs.1,00,000/-, defendant No.1 has put defendant
No.5 in possession.
H
9. \Nith these pleadings parties led their evidence. Upon
conside!ration of the entire material, the suit filed by the
S.R. SRINAVASA AND ORS. v. S.
991
PADMAVATHAMMA [SURINDER SINGH NIJJA~. J.]
appellants herein was dismissed by the Trial Court.
A
· 10. The Trial Court notices that defendant No.1 is the son
of Seethamma, sister of Puttathayamma. It is also noticed that ·
lndiramma was the second wife of one Chelapathirao who had
six children from his previous marriage. lndiramma, however,
8
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 lndiramma. Defendant No.1
had examined the scribe of the Will as DW2 to prove the Will.
C
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 appeilants herein as the legal heirs.
In view of the testamentary succession, lndiramma became the
absolute owner of the schedule property. Since husband of
lndiramma had pre-deceased her, the property would devolve
D
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 lndiramma
E
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 Wil! dated 2.10.84 marked
as Exhibit, he had not chosen to examine any of the attesting
witnesses to the document. Defendant No.1 had earlier not
F
instituted any proceedings to prov.e 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 G
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
H
992
SUPREME COURT HEPORTS
[2010] 4 S.C.R.
A 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) an~. lndiramma. lndiramma
was in po:ssession of the schedulefproperty. After the death of
B Puttathayamma, plaintiff and defehdant No.4 were residing in
their matrimonial homes away from Puttathayamma. Defendant
No.1 had cremated lndiramma. Appellant and defendant No.4
had not been present at the time of the cremation.
Subsequently, they demanded the possession of the house
c which the first defendant refused to hand over. The first
defendant claimed to have put 5th defendant in possession as
a mortgagt~e. Therefore they filed the suit claiming title over the
property a1nd possession thereof. In the written statement
defendant No.1 claimed that entire movable and immovable
0 property had been bequeathed to lndiramma In a Will dated
18.6.1974. The first appellate court upon examination of the
entire evidt~nce accepts the submission made on behalf of the
petitioners. that the execution of the Will is shrouded by
suspiciou~·. circumstances. The first appellate court also
negatived tlhe submission made on behalf of the first defendant
E 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 I
had also stated that he had come to know about the Will of
F Puttathayarnma from the written statement filed by defendant
No.1. It is, therefore, held that there can be no presumption with
regard to thEl genuineness of the Will on the basis of the alleged
admission. Therefore the first appeal was allowed, judgment
and decree of the Trial Court wen:! set aside. The suit filed by
G the plaintiffs/appellants was decreed with costs declaring that
the legal representatives of the pl~intiffs are the owners of the
suit property and they are entitled for possession of the suit
schedule property.
H
12. Agg1rieved against this, defendant No.1 filed Regular
S.R. SRINAVASA AND ORS. v. S.
993
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
Second Appeal No.641 of 2003 in the High Court of Karnataka,
A
Bangalore. The Hjgh 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
8
their right to seek possession. According to the 1st
defendant, Ex.D7 is the registered will executed by
Puttathayamma in favour of her daughter, lndiramma. As
argued by Shri T.N. Raghupathy, learned counsel for
respondents-appellants, I find that PW1-1 st plaintiff has
C
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 lndiramma 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
D
, 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 lndiramma. When execution of the
E
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
F
the will is shrouded with suspicious circumstances is based
on unwarranted surmises and contrai'y 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 lndiramma through Will, Section 15(2) of the
Act would not be applicable. It is noticed that 'The provisions
of Section 15 (2) will apply only when the property is acquired
G
by a female by way of intestate succession, otherwise, the
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994
SUPREME COURT REPORTS
[2010) 4 S.C.R.
A property would devolve as directed under sub-Section (1). May
be, the children of deceased husband of lndiramma being step
sons, ane not entitled to succes5ion under.sub-sec. (1) (a), but
however as heirs of th~ husband, under sub-sec .. (1) (b) of
Sec.15, they will be entitled to succeed to the estate. In that
B 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 see~ the relief of title by succession.
Consequently, the appeal was allowed .. The judgment and
c decree of the Appellate Court was set aside. The judgment and
decree of the Trial Court was confirmed. This judgment is
challenued 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
D erronecius 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
E been executed by Puttathayamma. The Will had to be proved
in accordance with the procedure laid down under Section 63
of tile 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
F is shrciuded 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
G 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
H had attested the Will. Therefore, his examination as a witness
S.R. SRINAVASA AND ORS. v. S.
995
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
would not cure the defects· .. The High Cou'1 has also ignored
A ·
the fact that lndiramma 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 th~ 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 a
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 defendant No.1 to exclude the appellants from c
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 0
reasons. In support of his submissions, learned counsel has
relied on the following judgments:-
( 1) Jayantilal Mansukhlal and another vs. Mehta
Chhanalal Amba/al, AIR 1968 Gujarat 212;
(2) State of Punjab vs. Ba/want Singh and others, 1992
Supp (3) Supreme Court Cases 108;
E
(3) V. Dandapani Chettiar vs. Balasubramanian Chettiar
(Dead) by L.Rs. and Others, (2003) & Supreme Court
F
Cases 633;
(4)
Palanive/ayutham
Pillai
and
others
vs.
Ramachandran and others, (2000) 6 Supreme Court
Cases 151; and
(5) K. Kama/am (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 Puttathayatnma died
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SUPR:EME COURT REPORTS
[2010) 4 S.C.R.
A intestate. He further submitted that even if the Will dated
18.6.197 4 is accepted as valid, defendant No.1 cannot inherit
the property Gf lndiramma as she had died intestate. The Will
dated 2.10.8.:1, propounded by defendant No.1 to have been
made by lndiramma has not been proved. Therefore, again
B 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 th"e
appellants as he is a complete outsider for the family. Section
15 of the Act has been enacted to ensure that the property
C remains within the family. Therefore, this court has consistently
held against stranger in matters of succession.
16. Leamed 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
D exclusion of the other daughters was because they were
married and well settled. Therefore, the property was given in
good faith to the unmarried lndiramma. Learned counsel further
submitted that if a respondent is a trespasser, equally the
appellants have not proved any better title. The first appellate
E 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 lndiramrna. It is further submitted that the suspicious
circumstances pointed out by the appellants are only
conjectural. Therefore, the High Court has rightly disregarded
F 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. lndiramma's presence in the house at the time when
the Will was written is natural as she was living with
G 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 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
H son. In fact it was only because her son had died that .she
S.R. SRINAVASA AND ORS. v. S.
997
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
bequeathed her property to lndiramma. Learned counsel further
A
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
B
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 lccharam alias
'
Brijram and others, AIR 1974 Supreme Court 471; and
(3) Gautam Sarup vs. Leela Jetly and others, (2008) 7
c
SCC85.
D
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
E
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.
18. We have considered the submissions made by the
F
learned counsel for the parties. It is not disputed that
resp_ondent 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 ttte family which is as under:-
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SUPHEMI: COURT REPORTS
[2010] 4 S.C.R.
A
Putta1thayamma
Sivaramaia
{died in 15.11.1997)
{died in 1950)
I
I
rSmt. Lalithamrna
Subbaramaiah Smt. Kamalamma Smt. lndiramma
B {died in 1990)
{diea 1973)
(died 1998)
(died issueless
(original plaintiff)
issueless
issueless
24.10.1985
I
(def.4)
(husband
I
Predeceased)
I
c
I
I
I
S.R. Srinivasan
B.S. Umadevi
S.R. VenkatS.R.V.
S.R. Rajarao
Krishnaiah
Subbarao
(plff.1)
(plff.2:
(plff.3)
(plff.4)
(plff.5)
0
19. Cll::!arly if the Will dated 18.61974 is held not to be
genuine, th13 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 whether the Will executed
by Puttath;:1yamma has been proved to be duly executed and
E the same was genuine.
F
G
H
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
chilclren of any predeceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
S.R. SRINAVASA AND ORS. v. S.
999
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
(d) fourthly, upon the heirs of the father; and
A
(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
8
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
c
the other heirs referred to in sub-section (1) in the order
0
specified therein, but upon the heirs of the husband."
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
E
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. Ba/want Singh, 1992 Supp (3) sec
108. The scheme underlying the introduction of the aforesaid
"F
provision had been discussed as follows:
"It came to be incorporated on the recommendations
of t!'";e 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:
G
"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
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B
c
1000
SUPREME COURT REPORTS
[2010] 4 S.C.R.
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 Committe~ such a provision would
prevent properties passing into the hands of persons to
whom .1ustice 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
amon!~ the heirs to a Hindu female and to prevent the
prope11ies from passing into the hands of persons to whom
justicH 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."
22. This Court had occasion to consider the scheme of the
0 aforesaid Section in the case of V. Dandapani Chettiar v.
Ba/asubmmanian Chettiar,(2003) 6 SCC 633. The extent and
nature of the rights conferred by this section is expressed as
follows:-
E
F
G
H
"9. The above section propounds a definite and uniform
schEime of succession to the property of a female Hindu
who dies intestate after the commencement of the Act. This
sec1rion groups the heirs of a female intestate into five
catogories 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
th1~ property inherited by her from her husband or fatherin-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
h1~irs of the husband. The two exceptions mentioned above
S.R. SRINAVASA AND ORS. v. S.
1001
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
are confined to the property "inherited" from the father,
A
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
B
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." c
"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
D
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
E
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
F
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
G
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.