# V. KALYANASWAMY (D) BY LRS. & ANR v. L. BAKTHAVATSALAM (D) BY LRS. & ORS

- **Citation:** [2020] 9 S.C.R. 619
- **Court:** Supreme Court of India
- **Decided:** 2020-07-17
- **Case number:** Civil Appeal Nos.1021-1026 of 2013
- **Bench:** Sanjay Kishan Kaul, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-kalyanaswamy-d-by-lrs-anr-v-l-bakthavatsalam-d-by-lrs-ors-34878
- **Pages:** 168

## Headnote

Hindu Succession Act, 1956 - Death before enactment of -
Effect of - One 'RVN' had two sons ('LN' and 'RN') and five
daughters - 'LN' had four sons - 'RN' was married to 'RK', they
did not have any issue - 'RN' passed away on 01.06.1955 -
Litigation ensued between the parties (in five stages) inter alia
through various suits - Present appeals arise out of two civil suits
(fifth stage/the present litigation), one filed by 'LN's' branch
(respondents) and the other by one of the four legatees (appellantsnephews of 'LN' and 'RN') under a Will (dtd.10.05.55) allegedly
executed by 'RN' - Appellants claimed severance of the Joint Hindu
Family alleging oral partition between 'RN' and 'LN' in 1932 -
Aforesaid Will was alleged to have been executed by 'RN' appointing
'RK's' nephew as executor - Divided status was declared by way of
notice allegedly dated.10.05.1955 in a newspaper, on which reply
dated.11.05.1955 was sent by 'LN' - Respondents denied appellants'
case - Trial court decreed respondents' suit - First Appellate Court
allowed the appeals filed by the appellants - High Court inter alia
found that the Will could not be relied upon, as the requirement
u/s.68, 1872 Act was not fulfilled and restored the decree of trial
court - Held: s.69, 1872 Act manifests a departure from the
requirement embodied in s.68 - In the present case, requirement of
proof of Will u/s.69 are fulfilled - Respondents failed to prove that
the Will is vitiated - Will was indeed executed by 'RN' and was his
last will - However, the notice is dated.12.05.1955 in which case
the reply being sent on 11.05.1955, becomes impossible - If there is
no reply sent on 11.05.1955, then, it will not be possible to attribute
communication of the notice to separate to 'LN' - Thus, though
there was a publication made, knowledge of the same cannot be
attributed to 'LN', before the death of his brother - Therefore, since
there was no division brought about by 'RN' before his death, the
Will would be invalid and end of the road for appellants - Further,
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'RN' died on 01.06.1955, i.e. before the enactment of 1956 Act -
Thus, when he died, he left behind an interest in the Hindu joint
family - When succession opened to his estate, s.3(2), 1937 Act
would apply - A limited estate sprung in favour of his widow, 'RK'
which bloomed u/s.14 (1), 1925 Act into an absolute estate - When
she compromised in O.S No.71 of 1958 giving up her rights over
the property including the plaint scheduled property in these cases,
it conferred absolute rights in favour of 'LN's' branch - Code of
Civil Procedure, 1908 - Or.II, r.2 - - Transfer of Property Act, 1882
- s.19 - Evidence Act, 1872 - ss.3, 33, 40-43, 68, 69, 71 - Hindu
Women's Right to Property Act, 1937 - ss.2, 3, 5 - Code of Criminal
Procedure, 1898 - s.145 - Estoppel/Waiver/Acquiescence - Indian
Succession Act, 1925 - ss.57, 59, 63, 119, 211 - Hindu Succession
(Amendment) Act, 2005 - s.6 - Doctrine of Relating Back - Doctrine
of Survivorship - Hindu Wills Act, 1870 - Indian Succession Act,
1865 - Probate and Administration Act, 1881.
Code of Civil Procedure, 1908 - Or.II, r.2 - Scope of -
Discussed.
Code of Civil Procedure, 1908 - Or.II, rr.2, 3 - Held: Be it
the omission or intentional relinquishment of a claim arising out of
a cause of action under Or. II, r.2(2) or not seeking a relief under
Or. II, r.2(3), the fatal consequences they pose, will arise only if the
cause of action is the same.
Transfer of Property Act, 1882 - s.19 - Commonality between
s.19 and s.119, 1925 Act - Discussed - Indian Succession Act, 1925
- s.119.
Evidence Act, 1872 - s.33 - Applicability of - Held:
Applicability of s.33 does not depend upon the nature of the decision
which is rendered in the earlier proceeding.
Evidence Act, 1872 - s.33 - Held: Requirements u/s.33 are
not to be confused with the ingredients to be fulfilled even in a case
u/s.11, CPC - Code of Civil Procedure, 19

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619
V. KALYANASWAMY (D) BY LRS. & ANR.
v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
(Civil Appeal Nos.1021-1026 of 2013)
JULY 17, 2020
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Hindu Succession Act, 1956 - Death before enactment of -
Effect of - One 'RVN' had two sons ('LN' and 'RN') and five
daughters - 'LN' had four sons - 'RN' was married to 'RK', they
did not have any issue - 'RN' passed away on 01.06.1955 -
Litigation ensued between the parties (in five stages) inter alia
through various suits - Present appeals arise out of two civil suits
(fifth stage/the present litigation), one filed by 'LN's' branch
(respondents) and the other by one of the four legatees (appellantsnephews of 'LN' and 'RN') under a Will (dtd.10.05.55) allegedly
executed by 'RN' - Appellants claimed severance of the Joint Hindu
Family alleging oral partition between 'RN' and 'LN' in 1932 -
Aforesaid Will was alleged to have been executed by 'RN' appointing
'RK's' nephew as executor - Divided status was declared by way of
notice allegedly dated.10.05.1955 in a newspaper, on which reply
dated.11.05.1955 was sent by 'LN' - Respondents denied appellants'
case - Trial court decreed respondents' suit - First Appellate Court
allowed the appeals filed by the appellants - High Court inter alia
found that the Will could not be relied upon, as the requirement
u/s.68, 1872 Act was not fulfilled and restored the decree of trial
court - Held: s.69, 1872 Act manifests a departure from the
requirement embodied in s.68 - In the present case, requirement of
proof of Will u/s.69 are fulfilled - Respondents failed to prove that
the Will is vitiated - Will was indeed executed by 'RN' and was his
last will - However, the notice is dated.12.05.1955 in which case
the reply being sent on 11.05.1955, becomes impossible - If there is
no reply sent on 11.05.1955, then, it will not be possible to attribute
communication of the notice to separate to 'LN' - Thus, though
there was a publication made, knowledge of the same cannot be
attributed to 'LN', before the death of his brother - Therefore, since
there was no division brought about by 'RN' before his death, the
Will would be invalid and end of the road for appellants - Further,
[2020] 9 S.C.R. 619
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'RN' died on 01.06.1955, i.e. before the enactment of 1956 Act -
Thus, when he died, he left behind an interest in the Hindu joint
family - When succession opened to his estate, s.3(2), 1937 Act
would apply - A limited estate sprung in favour of his widow, 'RK'
which bloomed u/s.14 (1), 1925 Act into an absolute estate - When
she compromised in O.S No.71 of 1958 giving up her rights over
the property including the plaint scheduled property in these cases,
it conferred absolute rights in favour of 'LN's' branch - Code of
Civil Procedure, 1908 - Or.II, r.2 - - Transfer of Property Act, 1882
- s.19 - Evidence Act, 1872 - ss.3, 33, 40-43, 68, 69, 71 - Hindu
Women's Right to Property Act, 1937 - ss.2, 3, 5 - Code of Criminal
Procedure, 1898 - s.145 - Estoppel/Waiver/Acquiescence - Indian
Succession Act, 1925 - ss.57, 59, 63, 119, 211 - Hindu Succession
(Amendment) Act, 2005 - s.6 - Doctrine of Relating Back - Doctrine
of Survivorship - Hindu Wills Act, 1870 - Indian Succession Act,
1865 - Probate and Administration Act, 1881.
Code of Civil Procedure, 1908 - Or.II, r.2 - Scope of -
Discussed.
Code of Civil Procedure, 1908 - Or.II, rr.2, 3 - Held: Be it
the omission or intentional relinquishment of a claim arising out of
a cause of action under Or. II, r.2(2) or not seeking a relief under
Or. II, r.2(3), the fatal consequences they pose, will arise only if the
cause of action is the same.
Transfer of Property Act, 1882 - s.19 - Commonality between
s.19 and s.119, 1925 Act - Discussed - Indian Succession Act, 1925
- s.119.
Evidence Act, 1872 - s.33 - Applicability of - Held:
Applicability of s.33 does not depend upon the nature of the decision
which is rendered in the earlier proceeding.
Evidence Act, 1872 - s.33 - Held: Requirements u/s.33 are
not to be confused with the ingredients to be fulfilled even in a case
u/s.11, CPC - Code of Civil Procedure, 1908 - s.11.
Evidence Act, 1872 - First proviso to s.33 - 'representative
in interest' - Interpretation of - Held: 'representative in interest', is
to be understood liberally and not confined to cases where there is
privity of estate and succession of title.
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Evidence Act, 1872 - s.68 vis-à-vis s.69 - Held: s.69 manifests
a departure from the requirement embodied in s.68 - In a case
covered u/s.69, the requirement pertinent to s.68 that the attestation
by both the witnesses is to be proved by examining at least one
attesting witness, is dispensed with.
Evidence Act, 1872 - s.69 - Evidence conforming to the
requirements under - Duty of Court - Held: In a case, where there
is evidence appearing to conform to the requirement u/s.69, the
Court is not relieved of its burden to apply its mind to the evidence
and find whether the requirements of s.69 are proved - Reliability
of the evidence or the credibility of the witnesses is a matter for the
Court to still ponder over.
Hindu Law - Will - Capacity to make - Held: Requirement of
sound disposing capacity is not to be confused with physical wellbeing - A person who is having a physical ailment may not therefore
be robbed of his sound disposing capacity - The fact that a person
is afflicted with a physical illness or that he is in excruciating pain
will not deprive him of his capacity to make a will.
Hindu Law - Will - Burden to prove - Held: Burden to prove
the Will and to satisfy the conscience of the court that there are no
suspicious circumstances or if there are any to explain them is on
the propounder of the Will - Burden to prove that the Will is procured
by coercion, undue influence or fraud is on the one alleging the
same.
Hindu Law - Joint Hindu Family - Partition - Meaning of
and its implications - Discussed - Hindu Succession Act, 1956 -
ss.6 and 30.
Hindu Law - Property of the joint family - Right of the
coparcener - Held:In the case of property of the joint family as
long as the property is joint, the right of the coparcener can be
described as an interest - As long as the family remains joint, a
coparcener or even a person who is entitled to share when there is
a partition cannot predicate or describe his right in terms of his
share - The share remains shrouded and emerges only with division
in title or status in the joint family - Once there is a division the
share of a coparcener is laid bare.
V. KALYANASWAMY (D) BY LRS. & ANR. v.
L. BAKTHAVATSALAM (D) BY LRS. & ORS.
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Hindu Law - Right of a Hindu to make a Will, before and
after 1956 Act - Discussed - Hindu Succession Act, 1956 - s.30.
Hindu Women's Right to Property Act, 1937 - s.3 - Application
of - Held: s.3 of the 1937 Act applies when a Hindu dies intestate.
Hindu Women's Right to Property Act, 1937 - Contrast
between ss.3(1) & (2)- Discussed.
Hindu Succession Act, 1956 - Explanation to s.30 - Held:
Under Explanation to s.30, it is open to a Hindu to even bequeath
his interest in the Hindu Joint Family property.
Hindu Women's Right to Property Act, 1937 - Effect of demand
for partition by a widow, on coparcener's claim based on doctrine
of survivorship - Held: With the passing of the 1937 Act, in areas
to which it applied, an intrusion was indeed made upon a
coparceners right to set-up a claim to the property of a deceased
coparcener based on the Doctrine of Survivorship but the Act did
not annihilate the said right - Right to claim by Survivorship came
to be suspended but not extinguished - Widow, though not a
coparcener, was like a coparcener in most respects - She was also
conferred with the right to claim partition - Doctrine of Survivorship.
Practice & Procedure - Principle of no evidence, if no
pleading - When not applicable - Discussed.
Evidence Act, 1872 - ss.40-42 - When not applicable -
Discussed.
Hindu Law - Joint Hindu Family - Separation from - Notice
to other coparceners - When complete - Held: Notice in a newspaper
serves as a notice by a coparcener to effect division - However,
merely causing a notice to be published, without there being evidence
to show that the intended recipient became aware of it, may not
suffice - There cannot be a presumption that a person has read a
particular newspaper, and even more importantly, that he has read
the notice.
Hindu Succession Act, 1956 -s.14(1), (2) - Applicability of -
Discussed.
Words & Expressions- 'Interest', of a coparcener in a joint
Hindu family property - Meaning of - Discussed.
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Dismissing the appeals, the Court
HELD: 1. THE PROPERTY AT STAKE
The property in dispute, in both the Suits (O.S. No. 89 of
1983 and O.S. No. 649 of 1985- fifth stage/the present litigation,
which generated the present appeals), is the same. In the Will
dated 10.05.1955, there were sixteen items. In O.S. No. 71 of
1958 (second stage of litigation), R. Krishnammal was conferred
with absolute rights in respect of seven items. The property
involved in O.S. No. 36 of 1963 (third stage of litigation) also
related to the seven items, which figured in compromise Decree
in O.S. No. 71 of 1958, wherein R. Krishnammal was conferred
absolute rights. O.S. No. 632 of 1981 (fourth stage of litigation)
relates to items Nos. 5 and 6, in O.S. No. 36 of 1963. The items
which are scheduled in the present Suits are the items covered
by the Will dated 10.05.1955 other than the seven items, out of
which, four were alienated and one was acquired. As far as O.S.
No. 71 of 1958, filed by R. Krishnammal, is concerned, since she
had an alternate relief claiming partition, it encompassed the entire
property belonging to the coparcenary consisting of 93 items.
[Para 44][693-B-D]
2.1 THE EFFECT OF ORDER II RULE 2 OF THE CPC
The contention raised by the respondents is, inter alia, that
O.S. No. 89 of 1983 is barred by Order II Rule 2 of The Code of
Civil Procedure, 1908. This is for the reason that when two out
of the four appellants have instituted O.S. No. 36 of 1963, they
scheduled only seven items in the said Suit. It was open to the
appellants to claim the relief which they have claimed in the
present Suit. Having not sued in respect of the items of properties
other than the items scheduled in O.S. No. 71 of 1958, they are
barred under Order II Rule 2 of the CPC. Order II Rule 2 (2) of
the CPC postulates a situation where a plaintiff omits to sue in
respect of any portion of his claim or intentionally relinquishes
any portion of his claim. Then, he is debarred from suing in respect
of the portion so omitted or relinquished. A plaintiff entitled to
more than one relief arising from the same cause of action, can
do two things. He may sue in respect of all the reliefs arising
from the same cause of action in the same suit. He may, if he
omits to sue for one or more of the reliefs open to him under the
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same cause of action, seek leave of the court to sue for all such
reliefs, and if the court grants such leave, then, he may institute
a suit, though based on the same cause of action in the earlier
suit, in a fresh suit. The effect of not seeking the leave of the
court, however, in regard to any of the reliefs, which it was open
to him to sue for on the same cause of action, is that, he is barred
from suing for any other reliefs so omitted. The difference
between Order II Rule 2(2) and Order II Rule 2(3) of the CPC
may be noticed. The law contemplates a distinction between a
case where a claim arising out of the cause of action is either
intentionally relinquished or omitted to be sued upon. Such a
claim cannot be the subject matter of a fresh suit. However, when
more than one reliefs are available stemming from the same cause
of action, then, seeking further reliefs than sought in the first
suit, except where leave is obtained, would be barred. However,
present the grant of leave by the court, his subsequent suit
seeking the reliefs which were originally not sought but for which
leave is granted, is permissible. The principle of this provision is
actually captured in Order II Rule 2 (1) of the CPC which is that
every suit is to include the whole of the claim which arises out of
the cause of action and which the plaintiff is entitled to make. It
further declares that it is open to a plaintiff to omit any portion of
the claim. However, the consequences of the same are declared
in Order II Rule 2 (2) of the CPC. In this case, it is true that
when O.S. No. 36 of 1963 was instituted, the earlier Suit brought
by R. Krishnammal, viz., O.S. No. 71 of 1958, had culminated in a
compromise Decree. A perusal of the plaint itself would show
that the plaintiffs in O.S. No. 36 of 1963 have adverted to the
compromise in O.S. No. 71 of 1958. They have averred in
paragraph 7 of the plaint that under the compromise, R.
Krishnammal was given the property scheduled in the said Suit
(Suit No. O.S. No. 36 of 1963) in lieu of the properties comprised
in the Will and some cash. The rest of the properties comprised
in the Will were given-up by her in favour of the respondents
(the sons of Lakshmiah Naidu) it is averred. Thereafter, it is
averred that the defendants claim, i.e., R. Krishnammal claimed
absolute title to the properties scheduled in the plaint and which
was unsustainable both in law and facts. O.S. No. 36 of 1963 was
filed seeking a declaration that R. Krishnammal had only a life
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estate without any powers of alienation and the appellants have a
vested remainder in the said properties under the Will. The word
'said' obviously refers to the items scheduled in OS No.36 of
1963. The Suit (O.S. No. 89 of 1983) is fundamentally premised
on the death of R. Krishnammal in 1977 and the blossoming of
the full rights of the appellants under the Will. R. Krishnammal
having a life estate under the Will was alive when O.S. No. 36 of
1963 was filed. The absolute right under the Will, in favour of the
appellants, dawned only with the death of the life estate holder.
[Paras 46-50][693-E-G; 694-C-H; 695-A, H; 696-A-C, H; 697A-B]
Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions
(P) Ltd. (2013) 1 SCC 625 : [2012] 7 SCR 933 - relied
on.
2.2 Section 119 of the Indian Succession Act, 1925 deals
with the date of vesting of legacy when, inter alia, possession is
postponed. Section 19 of the Transfer of Property Act, 1882 deals
with vested interest. Vested interest is different from the
contingent interest. The two have vastly different consequences.
The death of R. Krishnammal being a certain event, the interest
of the remaindermen is a vested interest. The commonality
between Section 19 of the TP Act and Section 119 of the Indian
Succession Act, and which is apposite to the facts of this case, is
as follows:
When under the Will, a life estate was created in favour of
R. Krishnammal with an absolute remainder in favour of
the appellants, the legacy in favour of the appellants became
vested from the time of death of the testator. The
possession and the enjoyment of the property, however,
under the Will, was the domain of the life estate holder,
viz., R. Krishnammal as long as she was alive. She, however,
had no right to enlarge the boundaries of her right under
the Will. This is, no doubt, subject to the impact of
supervening Legislation. By her unilateral act or by even
joining together with the third party, it would not be open
to life estate holder to defeat the rights of the remainder
men. The significance of a case being covered under Section
119 Illustration (III), of the Indian Succession Act, is that
with the death of the Testator, the right in the property
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becomes vested with the remainder men, from the time of
death of the Testator. In other words, upon the death of the
legatee under the Will, in whom the absolute right is vested
after the transient possession and enjoyment of the life
estate holder, a heritable right, which, in fact, arose at the
time of the death of the testator, would confer legal rights
upon the heirs of the absolute owner under the Will when
succession to his estate opens, should he not wish to leave
a Will behind. Though the right is vested in the property,
the enjoyment of the property with the absoluteness of a
full owner under the Will could be done by the appellants
only after the death of R. Krishnammal. Having thrown light
upon the words 'absolute rights' in the context of Section
119 of the Indian Succession Act, 1925, it is this right which
was sought to be made subject matter of a Decree for
declaration and partition. It is clear that in the year 1963 or
till the death of R. Krishnammal, the rights as sought to be
enforced, did not inhere with the appellants as explained.
They could not have sought a partition of the plaint
scheduled properties while R. Krishnammal was alive.
[Paras 50-52][697-C; 698-A; E-H; 699-A-C]
2.3 Be it the omission or intentional relinquishment of a
claim arising out of a cause of action under Order II Rule 2(2) or
not seeking a relief under Order II Rule 2 (3), the fatal
consequences they pose, will arise only if the cause of action is
the same. Though the plaintiffs in O.S. No. 36 of 1963 could have
sought a declaration about the compromise Decree in O.S. No.
71 of 1958, qua all the properties covered under the Will, in the
facts of this case, the cause of Action in O.S. No. 36 of 1963 and
the present Suit (O.S. No. 1989 of 1983) are clearly distinct. It is
significant to note that the cause of action in OS No.36 of 1963
was the threat of alienation of the items scheduled therein. O.S.
No. 36 of 1963 was more as a protective action by persons who
had vested interest in the property under Section 119 of the Indian
Succession Act, 1925. Cause of action is not to be confused with
the relief which is sought. It has more to do with the basis for the
relief which is sought. [Para 54][699-F-H; 700-A-B]
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3.1 THE IMPACT OF THE PROCCEDINGS AND THE
DECREE PASSED IN O.S. NO. 71 OF 1958 AND O.S. NO. 36
OF 1963 AND O.S NO. 732 OF 1981
ESTOPPEL, WAIVER, ACQUIESCENCE
O.S. No. 71 of 1958 was a Suit filed by R. Krishnammal.
Defendants Nos. 1 to 4 were sons of Lakshmiah Naidu. The Fifth
Defendant was the Executor of the Will. R. Krishnammal lay store
by the Will executed by her late husband V. Rangaswami Naidu.
In the alternate, she also claimed a Decree for Partition, virtually
giving-up her right under the Will and on the basis that V.
Rangaswami Naidu died intestate. The matter did not go to trial.
It ended in a compromise. The substance of the compromise is,
a few of the items mentioned in the Will, seven items were
recognised as absolute properties of R. Krishnammal even
though, under the Will, she had only a limited right over those
items. R. Krishnammal, for her part, under the compromise
Decree gave-up her rights in respect of the rest of the properties.
The appellants were not parties to the compromise. Appellants
were not tracing their rights under R. Krishnammal. Appellants
were given an absolute right under the Will executed by their
uncle V. Rangaswami Naidu. The bequest in their favour created
a vested interest within the meaning of Section 119 of the Indian
Succession Act, 1925. R. Krishnammal could not have also
enlarged the rights of the branch of Lakshmiah Naidu, once she
accepted the Will, for she had only a life estate over the properties
covered under the Will. The appellants were also not bound by
her acts in entering into a compromise seeking to confer absolute
rights qua those properties, which were subject matter of the
Will, in respect of which, they had the right to be enjoyed after
the death of R. Krishnammal. O.S. No. 36 of 1963 came to be
filed by two of the four appellants, who are Legatees under the
Will. They sought a declaration to the effect that R. Krishnammal
could not enlarge her right and she could not alienate the
properties (the very seven items, which, under the compromise
Decree of O.S. NO. 71 of 1958, were recognised as her absolute
properties). It is true that the plaintiffs in O.S. No. 36 of 1963 did
not choose to include the plaint schedule properties in the present
Suit and seek a declaration qua them. There are two aspects to
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it, which this Court must bear in mind. Firstly, the cause of action
for filing O.S. No. 36 of 1963 was alleged to be the apprehension
that R. Krishnammal was about to alienate the seven items over
which she acquired absolute rights under O.S. No. 71 of 1958 (in
fact, it was alleged that one item was alienated). Secondly,
paragraph-11 of the Plaint has already been noticed. Therein, the
plaintiffs have revealed their mind to be that they intend to pursue
their right qua other properties apparently which are the plaint
schedule properties in O.S. No. 89 of 1983. As already indicated,
the bar of Order II Rule 2 of the CPC will not apply. There is
some merit in the contention of the appellants that the Decree
passed in O.S. No. 36 of 1963 did involve watering down the
terms of the compromise Decree in O.S. No. 71 of 1958. As on
the date of the compromise in O.S. No. 36 of 1963, the position
was that four, out of the seven items, had been alienated by R.
Krishnammal, whereas, one property had been acquired by the
Government. As regards Item Nos. 5 and 6 in the plaint schedule
in O.S. No. 36 of 1963, the terms of the Will dated 10.05.1955,
came to be reiterated. This is for the reason that in departure
from the terms of the Decree in O.S. No. 71 of 1958, under which
R. Krishnammal was conferred with the absolute rights in respect
of Item Nos. 5 and 6, in regard to the very same items, under the
compromise Decree in O.S. No. 36 of 1963, R. Krishnammal was
only to enjoy the properties during her lifetime and without the
power of alienation. In other words, the terms of the Will dated
10.05.1955 are seen reflected and reinforced by the compromise
Decree in O.S. No. 36 of 1963. Both, in O.S. No. 71 of 1958 and
O.S. No. 36 of 1963, there is no adjudication by the court. As to
what is the expediency which led the parties to enter into the
compromise Decree, may not be decisive of the legal rights of
the parties which this Court is called upon to pronounce. The
action of the branch of Lakshmiah Naidu, who had also joined as
parties in O.S. No. 36 of 1963, and who were represented by the
Counsel, may not obviate the need for proving the Will on the
part of the appellants. [Paras 55, 56][700-D-G; 701-A-H; 702-AC]
3.2 In the compromise Decree in O.S. No. 36 of 1963, the
plaintiffs have stated that they are not seeking any relief against
the other defendants which include the Lakshmiah branch. From
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this, it is sought to be contended that the interest of the branch
of Lakshmiah Naidu, which stood secured under the compromise
Decree of O.S. No. 71 of 1958, whereunder R. Krishnammal had
given up her rights in regard to all properties other than the
seven items over which she was conferred absolute rights, was
left undisturbed and unimpeached. This conduct is emphasised
to point out that it would constitute a bar by way of principles,
including estoppel and acquiescence for the appellants in
instituting O.S. No. 89 of 1983 in regard to the plaint schedule
properties over which R. Krishnammal had give-up all her rights
in O.S. No. 71 of 1958. Even in the Plaint, in O.S. No. 36 of 1963,
the properties, other than the seven items, were admittedly not
the subject matter of the Suit. More importantly, what is stated
in the compromise is that no relief is claimed against the other
Defendants in the said Suit. It is equally true that by the passing
of the Decree in O.S. No. 36 of 1963, the interest of the Lakshmiah
branch was not imperilled. This is for the reason that in regard to
Item Nos. 5 and 6 in O.S. No. 36 of 1963, over which the rights of
R. Krishnammal were limited to a life estate with a taboo against
alienation bringing it in tune with the terms of the Will under the
Compromise did not matter for the branch of Lakshmiah Naidu.
This is for the reason that as far as they were concerned, they
were already bound by the compromise Decree in O.S. No. 71 of
1958 whereunder R. Krishnammal had been conferred absolute
rights in regard to Item nos. 5 and 6, interalia, and they had lost
all their rights. Therefore, the arrangement inter se between the
appellants and R. Krishnammal, qua those properties, was of no
concern to them. What they were interested in was the rest of
the properties over which they were given absolute rights under
the compromise Decree in O.S. No. 71 of 1958. The result is that
on the one hand the terms of the Will came to be reiterated under
the compromise Decree in O.S. No. 36 of 1963 qua Item Nos. 5
and 6. The Decree in O.S. No. 71 of 1958 was otherwise left
untouched. The passing of a Decree in O.S. No. 36 of 1963, is a
matter which is entirely between the appellants and R.
Krishnammal. In fact, the Lakshmiah Naidu branch, though made
parties to the compromise, were not actually parties to the
Decree. They have not signed as parties to the compromise
Decree. Therefore, neither the appellants nor the respondents
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can derive any advantage from either the filing of O.S. No. 36 of
1963 or the passing of the compromise Decree therein. The
plaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732 of
1981. The Lakshmiah branch (among the respondents in the
appeals) were not parties. It was a Suit for partition of items 5
and 6 scheduled to O.S. No. 36 of 1963. It is obvious that they
cannot rely upon principles of res judicata or constructive res
judicata based on O.S. No.732 of 1981, being not parties to the
said Suit. What, however, is sought to be urged, is that the premise,
on the basis of which the Decree in O.S. No. 732 of 1981 was
passed, is completely incongruous with the cause of action in the
present Suit. In other words, it is pointed out that in O.S. No. 732
of 1981, the case set-up was R. Krishnammal had rights over the
property and this was inconsistent with the case set-up in the
present Suit. It was contended that the appellants were estopped
from undertaking such a course of action. The following conduct
could also be deduced. The cause of action in O.S. No. 732 of
1981 did involve drawing upon the rights secured (qua Item Nos.
5 and 6 in O.S. No. 36 of 1963) in O.S. No. 71 of 1958 whereunder
the Lakshmiah branch acknowledged rights of R. Krishnammal
who also gave-up her rights to properties which included the plaint
schedule items in the case. Though, this Court is not oblivious
to the dimensions projected, it would not think that Right to
Property, if otherwise is established in favour of the appellants, it
would be lost. It cannot be treated as a case of abandonment of
rights qua the plaint schedule properties. The respondents who
were not parties to O.S. No. 732 of 1981, cannot set-up a case of
estoppel. [Paras 57][702-D-H; 703-A-H; 704-A]
Sha Mulchand & Co. Ltd. (In Liquidation), By Official
Receiver, High Court, Madras v. Jawahar Mills Limited
Salem AIR 1953 SC 98 : [1953] SCR 351; Dr. Karan
Singh v. State of J&K and Another (2004) 5 SCC 698 :
[2004] 1 Suppl. SCR 43 - relied on.
4.1 WHETHER THE WILL DATED 10.05.1955 HAS
BEEN PROVED
[Sections 33, 68 and 69 of the Evidence Act]
The Will in question is an unprivileged Will. The mode of
making an unprivileged Will is provided in Section 63 of the Indian
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Succession Act. In order that a valid Will be made not only, it is
necessary that the Testator must execute the document but also
the execution must be attested by at least two witnesses. What
is required is not ordinary witnessing of a document but attestation
which is as is provided in Section 63 of the Indian Succession
Act. Section 68 of the Indian Evidence Act, 1872 deals with proof
of execution of a document required by the law to be attested. A
perusal of the same makes it clear that in the case of a Will,
being a document which is required to be attested by Section 63
of the Indian Succession Act, if there is an attesting witness alive
and subject to the process of the court and capable of giving
evidence, then, the Will can be proved only if one of the attesting
witness is called for proving its execution. Though the expression
used in Section 69 of the Indian Evidence Act, 1872 is 'if no such
attesting witness can be found, inter alia, it bears the following
interpretation'. The word 'such' before 'attesting witness' is
intended to refer to the attesting witness mentioned in Section
68 of the Evidence Act. As far as the expression 'found' is
concerned, it would cover a wide variety of circumstances. It would
cover a case of an incapacity to tender evidence on account of
any physical illness. It would certainly embrace a situation where
the attesting witnesses are dead. Should the attesting witness be
insane, the word "found" is capable of comprehending such a
situation as one where the attesting witness, though physically
available, is incapable of performing the task of proving the
attestation under Section 68 the Evidence Act, and therefore, it
becomes a situation where he is not found. In this case, there is
no dispute that both the attesting witnessing were not alive at
the relevant time. [Paras 58, 59, 61 and 64][704-B-D, E, G; 705A-B; 706-C]
4.2 The contention of the respondents appears to be only
that, in the proceeding under Section 145 of the CrPC, 1898 (first
stage of litigation), the tussle was between R. Krishnammal and
the Executor of the Will who were styled as A Party Nos. 1 and 2
and the B Party, viz., the respondents. The present appellants
were not parties. Therefore, the proceeding was not between
the same. The other limb of the first proviso to Section 33, viz.,
that in order that Section 33 of the Evidence Act applies, the
proceeding is between their representatives in interest is not
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fulfilled. The contention seen raised is that the appellants, who
are the remainder men under the Will, cannot be treated as
representatives in interest of R. Krishnammal. Further the nature
of Section 145 proceedings is highlighted as not one attracting
the 3rd proviso. The word 'representative in interest', in other
words, is to be understood liberally and not confined to cases
where there is privity of estate and succession of title. Answering
the two tests, which have been evolved in the facts of this case,
the respondents cannot contend that the interest of the appellants
was inconsistent with the interest of R. Krishnammal and in
particular the executor of the Will. It was certainly not antagonistic
to their interest. The Will was indeed set-up by R. Krishnammal
and the executor. Therefore, it can be safely concluded that the
interest of both persons comprised of A Party, which was the
protection of the possession, was also in the interest of the
appellants. It may be true that the appellants do not derive their
title under R. Krishnammal. But the requirements under Section
33 of the Evidence Act are not to be confused with the ingredients
to be fulfilled even in a case under Section 11 of the CPC. It
cannot be contended that the interest of the appellants lay in
answering the question posed in Section 145 of the CrPC
proceedings against R. Krishnammal and the Executor in favour
of the respondents, who were parties before the Magistrate. The
case of the Will was explicitly set up as also the declaration dated
10.5.1955 and further developments. Therefore, the contention
based on the third proviso also does not appeal. Also not only
was there opportunity to cross examine to the B party, it was
availed of. The applicability of Section 33 of the Evidence Act
also does not depend upon the nature of the decision which is
rendered in the earlier proceeding. On this basis, as Exhibit-B7
(deposition of the one of the attesting witnesses in the Will, in
proceedings under Section 145 of the CrPC) and even B13
(deposition by the Executor) indeed is evidence which was
tendered in the previous proceeding before the Magistrate who
was certainly authorised by law to take evidence, which is relevant
for proving the truth of the facts contained therein under
Section 33. [Paras 66-68][707-D-F; 708-G-H; 709-A-E]
4.3 Section 69 of the Evidence Act manifests a departure
from the requirement embodied in Section 68 of the Evidence
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Act. In the case of a Will, which is required to be executed in the
mode provided in Section 63 of the Indian Succession Act, when
there is an attesting witness available, the Will is to be proved by
examining him. He must not only prove that the attestation was
done by him but he must also prove the attestation by the other
attesting witness. This is, no doubt, subject to the situation which
is contemplated in Section 71 of the Evidence Act which allows
other evidence to be adduced in proof of the Will among other
documents where the attesting witness denies or does not
recollect the execution of the Will or the other document. In
other words, the fate of the transferee or a legatee under a
document, which is required by law to be attested, is not placed
at the mercy of the attesting witness and the law enables proof to
be effected of the document despite denial of the execution of
the document by the attesting witness. The requirement in
Section 69 of the Evidence Act would be if the signature of the
person executing the document is proved to be in his handwriting,
then attestation of one attesting witness is to be proved to be in
his handwriting. In other words, in a case covered under Section
69 of the Evidence Act, the requirement pertinent to Section 68
of the Evidence Act that the attestation by both the witnesses is
to be proved by examining at least one attesting witness, is
dispensed with. It may be that the proof given by the attesting
witness, within the meaning of Section 69 of the Evidence Act,
may contain evidence relating to the attestation by the other
attesting witness but that is not the same thing as stating it to be
the legal requirement under the Section to be that attestation by
both the witnesses is to be proved in a case covered by Section
69 of the Evidence Act. In short, in a case covered under Section
69 of the Evidence Act, what is to be proved as far as the attesting
witness is concerned, is, that the attestation of one of the attesting
witness is in his handwriting. The language of the Section is clear
and unambiguous. Section 68 of the Evidence Act, as interpreted
by this Court, contemplates attestation of both attesting
witnesses to be proved. But that is not the requirement in Section
69 of the Evidence Act. [Paras 70, 71][710-C-H; 711-A]
4.4 Section 69 speaks about proving the Will in the manner
provided therein. The word 'proved' is defined in the Evidence
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Act in Section 3. The question would be whether having regard
to the evidence before it, the Court can believe the fact as
projected in the evidence as proved. In a case, where there is
evidence which appears to conform to the requirement under
Section 69, the Court is not relieved of its burden to apply its
mind to the evidence and find whether the requirements of
Section 69 are proved. In other words, the reliability of the
evidence or the credibility of the witnesses is a matter for the
Court to still ponder over. As far as this case is concerned, the
evidence of one of the attesting witnesses is contained in B7 and
which is found relevant under Section 33, establishes that he was
an Income Tax Practitioner. He was beckoned by Rangaswami
Naidu, informing him that he had written a Will and it was to be
attested. He was asked to in fact to attest even upon going there
on that day. He speaks about the testator signing on every page
and also, he has spoken about him signing. He establishes
requirement of Section 69 in regard to the signature of one of the
attesting witnesses being proved in his handwriting. There is no
reason to doubt the testimony. As far as signature of the testator
is concerned, apart from B7 and B13, the executor has spoken
of the testator signing. Also, PW1 (the witness on behalf of the
respondent) has deposed that the Will was shown to him he
admitted that every page is contained with the paternal uncle
signature. Thus, the requirement of proof of Will under Section
69 are fulfilled. [Paras 73, 74][712-B-H]
5. WHETHER RECEPTION OF B10 (CERTIFIED COPY
OF THE WILL) AS SECONDARY EVIDENCE LEGAL?
The original of the Will according to the case of the
appellants continued to be with the executor who was in fact the
nephew of R. Krishnammal, the widow of Rangaswami Naidu. An
attempt was made to get the original Will produced at the relevant
time when the executor had passed away, on the basis that his
son was in possession of the original Will. He was called upon to
produce the Will by C1. He responded by pointing out that he
was not having the original Will with him. The finding of the Trial
court as affirmed by the First Appellate Court is that
circumstances warranted admission of secondary evidence to
prove the Will. There is no reason to take a different view and
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the view taken by the High Court cannot be sustained. It may be
true that in the proceedings in O.S. No. 71 of 1958 and O.S. No.
36 of 1963, the Will was projected first by R. Krishnammal and
thereafter, the plantiffs in O.S. No. 36 of 1963 who are among the
appellants before this Court. However, the matter did not go to
trial. The Will must be proved under the Evidence Act and not
with reference to plea of estoppel as taken by the appellants based
on the decree in O.S. No. 36 of 1963, being based on the Will and
the respondents having participated not as parties even to the
compromise but it is a far cry from finding that the facts of the
case did not warrant admission of secondary evidence regarding
the Will. [Paras 76, 77][713-C-G]
6. THE WILL: WHETHER IT IS THE GENUINE WILL
OF RANGASWAMI NAIDU? WHETHER IT IS VITIATED ON
ANY GROUND?
Rangaswami Naidu was an educated man. He was a former
M.L.C. He was an affluent man. He has no issues. He was
affectionate towards his sisters. He has chosen to favour each
branch of his sisters by selecting one son out of each branch to
be the legatees in whom the property were to vest. In fact, he
has also provided that the properties are to remain in the family
and should any of the legatees wish to sell, it should be offered to
the other legatees. As far as his health is concerned, it is well
settled that the requirement of sound disposing capacity is not to
be confused with physical well-being. A person who is having a
physical ailment may not therefore be robbed of his sound
disposing capacity. The fact that a person is afflicted with a physical
illness or that he is in excruciating pain will not deprive him of
his capacity to make a will. What is important is whether he is
conscious of what he is doing and the will reflects what he has
chosen to decide.