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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9282 OF 2010

LEELA RAJAGOPAL & ORS.      … APPELLANT (S)

VERSUS

KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)

WITH

CIVIL APPEAL NO. 9286 OF 2010 CIVIL APPEAL NO. 7004 OF 2012

J U D G M E N T

RANJAN GOGOI, J.

1.  All  the  three  appeals  being  directed  against  the  

common  judgment  and  order  of  the  High  Court  dated  

18.08.2009 were heard analogously and are being disposed of  

by this order.

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2. In the present appeals, which challenge a judgment of  

reversal  passed  by  a  Division  Bench  of  the  High  Court  of  

Madras, determination of what is essentially a question of fact  

confronts  this  Court  exercising  its  jurisdiction  under  Article  

136 of the Constitution.  The said question is with regard to  

the validity and legality of a Will dated 11.1.1982 executed by  

one K.P. Janaki Amma, the mother of the appellants and the  

first respondent.  The learned Trial Judge by his order dated  

23.01.2001 dismissed the probate proceedings instituted by  

the first respondent (later converted into a Suit being T.O.S.  

No.  16  of  1994)  by  holding  that  the  execution  of  the  Will  

dated  11.1.1982  is  surrounded  by  a  host  of  suspicious  

circumstances rendering the same legally unacceptable.  The  

aforesaid view of the learned Trial  Judge of the High Court  

having been overturned by the Division Bench of  the High  

Court  by  impugned  order  dated  18.08.2009,  the  present  

appeals have been filed.

3. We have heard Mr. Krishnan Venugopal and Mr. Dhruv  

Mehta, learned senior counsels as well as Mr. T. Harish Kumar  

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learned  counsel  for  the  appellants  and  Mr.  Vijay  Hansaria,  

learned senior counsel appearing for respondent No. 1.

4. Testator Late Janaki Amma had initially executed a Will  

dated 28.12.1981 bequeathing house property bearing No. 8,  

Malony  Road,  T.  Nagar,  Madras-17  in  favour  of  the  first  

respondent Kamala Menon Cochran and her grand-daughter  

Geetha (daughter of her predeceased daughter Leela).  The  

said Will, inter alia, contained a recital that the testator had 4  

sons.   In  the  Will  dated  28.12.1981  the  testator  had  

acknowledged that her sons are all well settled in life and had  

properties purchased in their names during the life time of  

their  father.   The testator  had further  stated  that  she had  

suffered extreme bereavement on the death of her daughter  

Leela which occurred on 02.02.1975 and therefore out of the  

deep attachment for her grand-daughter, Geetha, and also as  

her second daughter K.P. Kamala Menon i.e. respondent No. 1  

aged 46 years who is a Principal in a College and a spinster  

she is bequeathing the house property in favour of her grand-

daughter and her daughter to the exclusion of her sons.  The  

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said  Will  dated  28.12.1981  was  superseded/revoked  by  a  

subsequent  Will  dated  11.1.1982  which  contained  similar  

recitals as in the first Will  dated 28.12.1981 except for the  

fact that instead of 4 sons the testator mentioned that she  

had 5  living  sons.   After  the  death  of  Janaki  Amma which  

occurred on 27.04.1991 the respondent No. 1 had instituted a  

probate proceedings which was later converted into a suit, as  

the Will was disputed by the sons of the deceased.    

5. The appellants who were the defendants in the suit and  

respondents before the High Court had contested the legal  

validity of the Will dated 11.1.1982 by asserting that the same  

was not a valid instrument of conveyance executed on the  

free  volition  of  the  testator;  rather  it  was  dictated  at  the  

instance of the first respondent-daughter who had exercised  

undue influence and coercion on the testator.  To substantiate  

the contentions advanced, the contesting defendants had led  

evidence to show that the Will was executed in circumstances  

which give rise to serious doubts, with regard to its voluntary  

execution by the testator.   

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6. The learned Trial Court on a consideration of the cases of  

the parties and the evidence and materials adduced took note  

of the following circumstances surrounding the execution of  

the Will :  

(i) No specific  reason was disclosed as to why  

the sons i.e. the present appellants had been  

excluded from the Will;

(ii) At  the  time  of  execution  of  the  Will  the  respondent  No.  1  had  come  down  from  Tirupathi where she was working as a college  teacher/Principal to Madras and was staying  with the mother i.e. the testator;

(iii) Only  a  fortnight  earlier  to  the  execution  of  

the Will  i.e.  on 10.12.1981 the testator had  

written a letter  (Ex.  P8) to one of her sons  

Thangamani  (Predecessor-in-interest  of  

appellants  in  C.A.  No.  9282  of  2010)  

expressing  her  intention  to  partition  the  

house property, which was the subject matter  

of Will, equally among all the children;

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(iv) Non-production  of  the  original  copy  of  the  

Will;

(v) The  discrepancy  in  the  evidence  of  the  

witnesses of the plaintiff  with regard to the  

place of execution of the Will; and

(vi) The  prominent  part  played  by  the  plaintiff  

(respondent No. 1 herein) in the registration  

of the Will.

These  circumstances,  according  to  the  learned  Trial  

Court, were suspicious enough to justify a conclusion that the  

Will ought not to be accepted as a valid instrument executed  

on the free will and volition of the testator.   

7. In  appeal,  the  High  Court,  on  consideration  of  the  

grounds and reasons which had persuaded the learned Trial  

Court to take the above view, thought it proper to disagree  

with the same and reverse the consequential findings.  It may  

be noticed, at this stage, that in its very elaborate order the  

High  Court  had  gone  into  each  of  the  circumstances  

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mentioned above; the evidence in support thereof as adduced  

by the parties and the arguments advanced before reversing  

the findings of the learned Trial Court.   

8. Learned  counsels  for  the  appellants,  in  all  the  three  

appeals  before  us,  submitted  that  between  11.1.1982  i.e.  

alleged date of execution of the Will and 27.4.1991 i.e. date of  

death of the testator, the beneficiaries under the Will had not  

informed  anybody  about  the  existence  of  the  Will  which  

according to the learned counsel is unnatural.  Pointing out  

the evidence with regard to the place of execution of the Will,  

learned counsel  have  contended that  there  is  an  apparent  

inconsistency  in  this  regard  inasmuch  as  while  in  the  

verification  submitted  alongwith  the  probate  petition  as  

required under Sections 281 and 282 of the Indian Succession  

Act, 1925 PW-3 had claimed that the Will was executed in the  

house of the testator, in her evidence, PW-3, had stated that  

the  same was  executed  in  the  office  of  the  Sub-Registrar.  

However, PW-4, the Sub-Registrar who was examined did not  

categorically  depose  about  the  place  where  the  Will  was  

executed.  Reference has been made by the learned counsels  

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for  the  appellants  to  other  suspicious  circumstances,  

enumerated  hereinabove,  to  contend  that  the  same  are  

sufficient  and  adequate  to  justify  rejection  of  the  Will  in  

question.  Specifically, it was argued that no explanation has  

been offered for non-production of the original Will  and the  

High Court has accepted the story of loss of the Will on the  

mere statement of the first respondent.   On the said basis it  

is contended that the first respondent, as the Plaintiff, could  

not have led secondary evidence in support of the Will in the  

absence  of  clear  and  convincing  proof  of  the  loss  of  the  

original Will.  Bringing in a different set of attesting witnesses  

in place of the witnesses who had attested the execution of  

the first  Will  dated 28.12.1981; the non-examination of the  

attesting witness Seetha Padmanabhan and the examination  

of  the  second  witness  (PW-3)  Jaya  Lakshmi  who  was  a  

colleague of the plaintiff are other circumstances which the  

learned  counsel  for  the  appellants  contends  to  be  highly  

suspicious.  The absence of any evidence to show the lack of  

cordial relationship between the testator and her sons and the  

fact that defendant No. 4 i.e.  one of the sons was actually  

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looking after the mother has also been stressed upon to point  

out that there was no reason to exclude the sons under the  

Will.  In fact, learned counsels for the appellants have pointed  

out that PW-2 and   PW-3 had clearly and categorically stated  

that the relationship between the testator and her sons was  

good.  It is further argued that the letter dated 10.12.1981  

(Ex.  P8)  of  the  mother  to  one  of  the  sons,  properly  read,  

indicates a very cordial relationship and the purport thereof  

has  been  thoroughly  misinterpreted  by  the  High  Court  to  

come to the impugned findings and conclusions.  The lack of  

knowledge of English on the part of the testator has also been  

cited as another circumstance to justify its rejection.  Reliance  

has been placed on behalf of the appellants on the decision of  

this  Court  in  H.  Venkatachala  Iyengar   Vs.  B.N.  

Thimmajamma and Others1  as well as on a more recent  

pronouncement  in  Bharpur  Singh  and  Others   Vs.  

Shamsher Singh2 to contend that active participation of the  

first respondent in execution and registration of the Will ought  

to be viewed by us as raising serious doubts with regard to  1 1959 Supp (1) SCR 426 2 2009(3) SCC 687

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the voluntary execution of the Will by the testator.   Two other  

decisions of this Court in Rani Pnrnima Debi and Another  

Vs.  Kumar Khagendra Narayan Deb and Another3 and  

Apoline D’souza  Vs. John D’souza4 have also been placed  

to contend that the absence of any evidence to show that the  

Will was read over and explained to the testator, in view of  

her  lack  of  knowledge  of  English,  would  be  crucial  for  

determination of the authenticity of the Will in question.

9. Opposing  the  arguments  advanced  on  behalf  of  the  

appellants,  Shri  Vijay  Hansaria,  learned  senior  counsel  

appearing  for  respondent  No.  1  has  argued  that  the  

acceptance or rejection of the Will,  in the ultimate analysis  

would depend on the satisfaction of the judicial conscience of  

the Court with regard to its due execution.  Shri Hansaria has  

submitted  that  no  single  circumstance  would  be  

determinative of the question and it is the cumulative effect  

thereof which would be vital to the adjudication required to be  

made  by  the  Court.   The  mere  participation  of  the  first  

respondent in the execution and registration of the Will; her  3 (1962) 3 SCR 195 4 2007 (7) SCC 225

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presence in Madras at the time of execution of the Will will in  

no way affect the validity thereof, it is contended.  Insofar as  

the  discrepancy  in  the  place  of  execution  of  the  Will  is  

concerned, Shri Hansaria has pointed out that the verification  

filed alongwith the application for probate was in the standard  

form prescribed by the Original Side Rules of the High Court of  

Judicature at Madras (Form No. 55 which mentions the place  

of execution as the House of …….). Insofar as the loss of the  

original Will is concerned it is submitted that the same was in  

custody of the testator and was found to be missing only after  

her  death.   It  is  in  these  circumstances  that  the  probate  

proceedings were instituted on the basis of the certified copy  

of  the  Will  which is  authorised under  the provisions  of  the  

Indian Succession Act.   Insofar  as  the issue with  regard to  

knowledge of English of the testator is concerned, apart from  

pointing out the relevant part of the evidence of the witnesses  

to show that the testator could read and understand English,  

it is argued that PW-4 (Sub-Registrar) had deposed that in all  

cases of registration the testator is asked whether he/she is  

aware of the contents of the Will.  Shri Hansaria has cited the  

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decision  of  this  Court  in  Pentakota  Satyanarayana  and  

Others   Vs.  Pentakota  Seetharatnam  and  Others5 to  

contend that mere active participation in the registration of  

the Will by itself would not be a vitiating factor.  Reliance has  

also been placed on two decisions of this Court in  Mahesh  

Kumar  (Dead)  by  Lrs.   Vs.  Vinod Kumar  and Others6  

and  Ved Mitra Verma   Vs.  Dharam Deo Verma7 to show  

that  mere  exclusion  of  the  other  heirs  will  not  vitiate  the  

disposition made by a Will.

10. A Will may have certain features and may have been  

executed in certain circumstances which may appear to be  

somewhat unnatural.  Such unusual features appearing in a  

Will  or  the  unnatural  circumstances  surrounding  its  

execution will definitely justify a close scrutiny before the  

same can be accepted.  It is the overall assessment of the  

Court on the basis of such scrutiny; the cumulative effect of  

the unusual features and circumstances which would weigh  

with the Court in the determination required to be made by  

5 2005 (8) SCC 67 6 2012 (4) SCC 387 7 2014 (9) SCALE 219

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it.   The judicial  verdict,  in the last resort,  will  be on the  

basis  of  a  consideration  of  all  the  unusual  features  and  

suspicious  circumstances  put  together  and  not  on  the  

impact of any single feature that may be found in a Will or  

a singular circumstance that may appear from the process  

leading to its execution or registration.  This, is the essence  

of the repeated pronouncements made by this Court on the  

subject including the decisions referred to and relied upon  

before us.   

11. In  the  present  case,  a  close  reading  of  the  Will  

indicates its clear language, and its unambiguous purport  

and effect.  The mind of the testator is clearly discernible  

and the reasons for exclusion of the sons is apparent from  

the  Will  itself.   Insofar  as  the  place  of  execution  is  

concerned, the inconsistency appearing in the verification  

filed alongwith the application for probate by PW-3 and the  

oral  evidence  of  the  said  witness  tendered  in  Court  is  

capable of being understood in the light of the fact that the  

verification is in a standard form (Form No. 55) prescribed  

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by the Madras High Court on the Original Side, as already  

noticed.   Besides,  in  the  facts  of  the  present  case  the  

participation of the first respondent in the execution and  

registration of the Will cannot be said to be a circumstance  

that would warrant an adverse conclusion. The conduct of  

the first respondent in summoning her friend (PW-3) to be  

an attesting witness and in taking the testator to the office  

of the Sub Registrar should, again, not warrant any adverse  

conclusion. It also cannot escape notice that the Will dated  

11.1.1982 is identical with the contents of the earlier Will  

dated 28.12.1981.    Insofar  as  the execution of  the Will  

dated  28.12.1981  and  its  registration  is  concerned  no  

active  participation  has  been  attributed  to  the  first  

respondent.  The change of the attesting witnesses and the  

non-examination of Seetha Padmanabhan who had attested  

the  second  Will  dated  11.1.1982  has  been  sufficiently  

explained.

12. The  lack  of  knowledge  of  English  even  if  can  be  

attributed to the testator would not fundamentally alter the  

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situation  inasmuch as  before  registration  of  the  Will  the  

contents thereof can be understood to have been explained  

to  the  testator  or  ascertained  from  her  by  the  Sub  

Registrar, PW-4, who had deposed that such a practice is  

normally  adhered to.   The non-production of  the original  

Will  and  reliance  on  the  certified  copy  thereof  is  a  

circumstance which has been reasonably explained by the  

first  respondent  (plaintiff).   The  original  Will,  after  its  

execution on 11.1.1982, was in the custody of the testator  

and it is only on the day or her death i.e. 27.4.1991 that the  

first  respondent  (plaintiff)  could  find  that  the  Will  was  

missing from the envelope marked ‘KPP Will’.   The stand of  

the  plaintiff  that  the  original  Will  was  lost  while  in  the  

custody of her mother and her knowledge of such loss on  

the day of her mother’s death cannot be disbelieved merely  

because no  report  in  this  regard  was  lodged before  the  

police.

13. All  the unusual  and allegedly suspicious circumstances  

being capable of being understood in the manner indicated  

above, we cannot find any fault with the conclusions reached  

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by the High Court while reversing the judgment of the learned  

Trial Court.

14. Before parting we would like to  observe that the very  

fact  that  an appeal  to  this  Court  can be lodged only  upon  

grant  of  special  leave  to  appeal  would  indicate  the  highly  

circumscribed  nature  of  the  jurisdiction  of  this  Court.   In  

contrast to a statutory appeal, an appeal lodged upon grant of  

special leave pursuant to a provision of the Constitution would  

call for highly economic exercise of the power which  though  

wide  to  strike  at  injustice  wherever  it  occurs  must  display  

highly judicious application thereof.   Determination of  facts  

made by the High Court sitting as a first appellate court or  

even while concurring as a second appellate court would not  

be reopened unless the same give rise to questions of law  

that require a serious debate or discloses wholly unacceptable  

conclusions of  fact  which plainly  demonstrate a travesty of  

justice.  Appreciation  or  re-appreciation    of  evidence  must  

come to a halt at some stage of the judicial proceedings and  

cannot  percolate  to  the  constitutional  court  exercising  

jurisdiction under Article 136.

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15. We, accordingly, dismiss these appeals affirm the order  

dated 18.08.2009 passed by the Division Bench of the High  

Court in Original Side Appeal No. 185 of 2001.  However, in  

the facts and circumstances of the case, we make no order as  

to cost.

       ...………….…………………J.                        [RANJAN GOGOI]

  ..….…....……………………J.                        [R.K. AGRAWAL]

NEW DELHI, SEPTEMBER 08, 2014.

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