Shivakumar & Ors. vs Sharanabasappa & Ors.

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 and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. In fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. Although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document. [Para 15.5.][709-G-H; 710-A-E]

3. The document in question carries several such features of unusualness which travel into the realm of abnormalities. The matter does not rest with such abnormalities only. These abnormal features get confounded with other unusual features available in the contents of this document. Indisputably, several blank spaces are found in relation to the particulars of the properties and even some of the properties are not correctly described. Yet further, the dates mentioned in the document with reference to Hindi Calendar and English Calendar do not match. Yet another curious feature is the recital in the document of a past event (about vacating of the shop by the tenant in the year 1990) in the manner that such event shall happen in future. Therefore, the abnormalities relating to paper, pen and signature get magnified with blank spaces in the document as also with incorrect and inexplicable recitals. [Para 16][710-F-H; 711-D]

4. The problems relating to the probative value of the document Ex. P.4 do not end with the aforementioned abnormal features and curious factors. A close examination of this document takes us from abnormalities to mysteries too. In the opening passage of this document, the recital is to the effect that the testator was making the Will because so many accidents do happen. The fact remains that the testator and his wife both died in the car accident on 20.05.1994 but, it would require travelling into an entirely mystical region to accept that while making the Will on 20.05.1991, the testator had the premonition that he would perish in a vehicular accident. [Para 17][711-B-C]

5. Much emphasis is laid on behalf of the appellants on the submissions that execution of the Will in accordance with the requirements of Section 63 of the Succession Act and Section 68 of the Evidence Act has been duly established on record with the testimony of the attesting witnesses as also the witness with whom the Will along with the handwritten draft of the Will had been deposited by the testator. The submissions so made on behalf of the appellants cannot be accepted for the reason that mere proof of the document in accordance with the requirements of Section

68 of the Evidence Act is not final and conclusive for acceptance of a document as a Will. When suspicious circumstances exist and the suspicions have not been removed, the document in question cannot be accepted as a Will. [Para 20][712-D-F]

6. Having dilated on various major features which, individually and cumulatively, lead only to the conclusion that the document in question cannot be accepted to be the last Will of testator, it does not appear necessary to discuss several other shortcomings in the case of the plaintiffs, including various other factors like that the plaintiffs never took steps to get the statement of the said Swamiji recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened. [Para 23][713-E-G]

7. In view of this Court, the document in question falls flat at the very first question indicated in the case of H. Venkatachala Iyenger that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. This is apart from the fact that the document in question, propounded as a Will, is non-compliant with the requirements of clause (b) of Section 63 of the Succession Act. [Para 24] [713-G-H]

8. A conjoint reading of Rules 23, 23A and 24 of Order 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 Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. [Para 25.4][716-B-E]

H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 : [1959] Suppl. SCR 426; P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors. (1995) Supp 2 SCC 664 : [1995] 2 SCR 585; K. Laxmanan v. Thekkayil Padmini and Ors. : (2009) 1 SCC 354 : [2008] 16 SCR 1117; Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors. (1977) 1 SCC : [1977] 1 SCR 925 – relied on.

Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr. (1982) 1 SCC 20 : [1982] 1 SCR 1188; Uma Devi Nambiar and Ors. v. T.C. Sidhan (2004) 2 SCC 321 : [2003] 6 Suppl. SCR 637; Mahesh Kumar

(dead) by LRs v. Vinod Kumar and Ors (2012) 4 SCC 387; Mohan Kumar v. State of Madhya Pradesh and Ors. (2017) 4 SCC 92 : [2017] 2 SCR 889; Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors. AIR 1964 SC 529 – referred to.