V. Prabhakara vs Basavaraj K. (Dead) by Lr. & Anr.

ss.3, 8 – Held: When a party makes a claim based on revocation of earlier Will, as indicated in the subsequent Will, the acknowledgment of the former Will would form part of a conduct leading to a relevant fact vis-à-vis a fact in issue. ss.17, 58 – Held: When a party admits execution of a Will, which is otherwise proved in accordance with s.63, Indian Succession Act and s.68, Evidence Act, it becomes a relevant fact duly proved – Indian Succession Act – s.63 – Evidence Act – s.68. s.68 – Held: s.68 is to be followed mandatorily for proving a Will – This provision has to be seen and read alongwith s.63, Succession Act – Indian Succession Act – s.63.

Registration Act, 1908 – ss.17, 18, 27 – Held: Registration of a Will is only an additional/attending circumstance in proving it with the rebuttable presumption available u/s.114(e) of Evidence Act – Evidence Act, 1872 – s.114(e), 115.

Code of Civil Procedure, 1908 – Or. VI, VIII – Pleadings – Held: A relief can be on the basis of pleadings alone – Evidence is also to be based on such pleadings – Only exception would be when the parties know each other’s case very well and a pleading is implicit in an issue.

Allowing the appeals, the Court

HELD: 1. Section 3 of the Indian Evidence Act defines “a fact”. Conduct of a party would be construed as a fact under Section 8. Such a conduct may either be a previous or subsequent one. It is the product of a motive or a preparation. When evidence is given on the conduct of a party and if it is proved to the satisfaction of the court particularly when it involves an admission, adequate weightage is required to be given. Such a conduct would include a silence emanating from a party who is expected to speak and express. When a party makes a claim based upon revocation of the earlier Will, as indicated in the subsequent one, the said acknowledgement of the former would form part of a conduct leading to a relevant fact vis-à-vis a fact in issue. Section 17 defines “an admission” which would include a statement both oral and documentary. When such an admission is clear and unequivocal, there is no need to prove it while taking judicial notice. Under Section 58, a fact admitted need not be proved unless the court warrants it. Thus, in a case where a party admits the execution of the document in the nature of a Will, which is otherwise proved in accordance with Section 63 and Section 68 of the Indian Succession Act and Indian Evidence Act respectively, it becomes a relevant fact duly proved, in the absence of any discretion by the court. The exercise of discretion is a judicial one and therefore, there must be a basis in asking a party to prove it otherwise. Section 68 speaks of a requirement of proving the execution of a document required by law to be attested. This provision being mandatory as the word employed is “shall”, meaning thereby it shall not be used as evidence unless one attesting witness at least has been called for to prove its execution. When it comes to proving a Will, Section 68 of the Act is mandatorily to be followed. This provision has to be seen and read along with Section 63 of Indian Succession Act which not only mandates a compulsory attestation but reiterates compliance of section 68 of the Indian Evidence Act. Section 114 facilitates a court to presume existence of certain facts. As the word employed being “may”, it is a rebuttable presumption. Under Section 114(e) there is a presumption of judicial and official acts having been regularly and duly performed. The principle governing estoppel is defined under Section 115 of the Act. [Paras 14-18][385-C-H; 386-A-C]

2. The registration of a Will is only an additional or attending circumstance in proving it with the rebuttable presumption available under Section 114(e) of the Indian Evidence Act. [Para 19][386-E]

3. Order VI of the Code while defining the word “pleading” makes it applicable on even terms to both a plaint and written statement. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each other’s case very well and such a pleading is implicit in an issue. Additionally, a court can take judicial note of a fact when it is so apparent on the face of the record. [Para 20][386-F; 387-A-B]

4. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone. Though the first appellate court is the final court of fact and law, it has to fall in line with the scope and ambit of Section 96 of the Code. [Paras 21 and 23][388-D-F; 393-H]

Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 : [2008] 14 SCR 621; Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 : [2008] 6 SCR 1176 – relied on.

5. A testamentary court is not a court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning. A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue. The Appellant duly complied with the mandate of Section 63 of the Indian Succession Act along with Section 68 of the Indian Evidence Act. PW2 being the brother of the Appellant and the other sister were present at the time of execution of Exhibit P4. They have not raised any demur. Both the Courts found that Exhibit D1 is a forged and fabricated document. The alleged mortgage in favor of Respondent No.1 has not been proved. The Appellate Court unnecessarily created a suspicion when there is none. The Respondents have not denied the factum of the execution of Exhibit P4. The very fact that they made reliance upon Exhibit D1, which took note of Exhibit P4 as validly done, there is no need for any suspicion on the part of the High Court. That too, when the Trial Court did not find any. Such a suspicion did not arise from either of the siblings of the Appellant who would otherwise be entitled to a share in the Suit Property. The High Court did not give any reasoning whatsoever for differing with the views expressed by the Trial Court. The Appellate Court has not considered the relevant materials and substituted its own views when not warranted either on facts or law. The judgment and decree of the Appellate Court as confirmed in R.P No.279 of 2007, are set aside. The Judgment and Decree of the Trial Court is restored. [Paras 24, 25, 27, 28 and 30][394-A-E; 395-A, C-D, G]

Joseph Antony Lazarus (Dead) by LRs v A.J. Francis (2006) 9 SCC 515 : [2006] 3 SCR 709; Mahesh Kumar (Dead) By LRs v Vinod Kumar & Ors. (2012) 4 SCC

387 : 2012 (3 ) JT 338 – referred to.