(1) Without satisfactorily removing the suspicious circumstances
surrounding the will, whether the lower appellate court is
justified in holding that the requirements of Section 63 of the
Succession Act are satisfied by the propounder?
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(2) Without specifically analysing the evidence on the face of the
document itself, whether the lower appellate court is justified
in holding that the requirements of Section 63 of the
Succession Act and Section 68 of the Evidence Act are
satisfied by the propounder of the Will?
(3) Whether the lower appellate court is justified in upholding the
perverse finding of fact by the trial court?
(4) Whether the non-consideration of vital suspicious
circumstances in the execution of the Will by the trial court
warranting the interference of this court?
(5) Whether the lower appellate court is justified in holding the
judgment and decree of the trial court without any legal
scrutiny of the pleadings and evidence?
Kerala and another v. Joseph and others [2023 SCC OnLine
"16. For an appeal to be maintainable under Section 100,
Code of Civil Procedure ('CPC', for brevity) it must fulfil
certain well-established requirements. The primary and
most important of them all is that the appeal should pose a
substantial question of law. The sort of question that
qualifies this criterion has been time and again reiterated by
this Court. We may only refer to Santosh
Hazari v. Purushottam Tiwari 2001(3)SCC 179 wherein
this Court observed as follows:
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"12. The phrase "substantial question of law",
as occurring in the amended Section 100 is not
defined in the Code. The word substantial, as
qualifying "question of law", means -- of
having substance, essential, real, of sound
worth, important or considerable. It is to be
understood as something in contradistinction
with -- technical, of no substance or
consequence, or academic merely. However, it
is clear that the legislature has chosen not to
qualify the scope of "substantial question of
law" by suffixing the words "of general
importance" as has been done in many other
provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The
substantial question of law on which a second
appeal shall be heard need not necessarily be a
substantial question of law of general
importance.
xxxxxxx xxxxxxx xxxxxxx
14. A point of law which admits of no two
opinions may be a proposition of law but
cannot be a substantial question of law. To be
"substantial" a question of law must be
debatable, not previously settled by law of the
land or a binding precedent, and must have a
material bearing on the decision of the case, if
answered either way, insofar as the rights of
the parties before it are concerned. To be a
question of law "involving in the case" there
must be first a foundation for it laid in the
pleadings and the question should emerge
from the sustainable findings of fact arrived at
by court of facts and it must be necessary to
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decide that question of law for a just and
proper decision of the case. An entirely new
point raised for the first time before the High
Court is not a question involved in the case
unless it goes to the root of the matter. It will,
therefore, depend on the facts and
circumstance of each case whether a question
of law is a substantial one and involved in the
case, or not; the paramount overall
consideration being the need for striking a
judicious balance between the indispensable
obligation to do justice at all stages and
impelling necessity of avoiding prolongation in
the life of any lis." (emphasis supplied)"
7. In Chandrabhan v. Saraswat [2022 SCC OnLine SC
1273], which has been considered in the above judgment, the
Hon'ble Supreme Court held as follows:
"33. The principles relating to Section 100 of the CPC
relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents
of a document is a question of fact. But the legal
effect of the terms of a document is a question of
law. Construction of a document involving the
application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a
document or wrong application of a principle of law in
construing a document, it gives rise to a question of
law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a
mere question of law. A question of law having a
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material bearing on the decision of the case (that is,
a question, answer to which affects the rights of
parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding
precedents and involves a debatable legal issue. A
substantial question of law will also arise in a
contrary situation, where the legal position is clear,
either on account of express provisions of law or
binding precedents, but the court below has decided
the matter, either ignoring or acting contrary to such
legal principle. In the second type of cases, the
substantial question of law arises not because the
law is still debatable, but because the decision
rendered on a material question, violates the settled
position of law.
(iii) The general rule is that the High Court will not
interfere with findings of facts arrived at by the
courts below. But it is not an absolute rule. Some
of the well-recognised exceptions are where (i)
the courts below have ignored material evidence
or acted on no evidence; (ii) the courts have
drawn wrong inferences from proved facts by
applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. When we
refer to "decision based on no evidence", it not
only refers to cases where there is a total dearth
of evidence, but also refers to any case, where
the evidence, taken as a whole, is not reasonably
capable of supporting the finding."
8. The question, hence, is whether the questions framed in
the memorandum of second appeal satisfy the criterion laid down by
the Apex Court to qualify as substantial questions of law. The five
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questions that have been formulated in the memorandum of second
appeal, together, only raise one question, and that is, whether the
trial court and the First Appellate Court have correctly appreciated
the evidence on record, to arrive at a finding that the requirements
of Section 63 of the Succession Act and Section 68 of the Evidence
Act, have been satisfied. As far as the requirements of the above
statutory provisions are concerned, there is no scope for any doubt.
9. The counsel for the appellant put forth the following
arguments in order to impress upon the Court that substantial
questions of law arise for decision in this second appeal.
(i) The court failed to appreciate interlineations in the 'Will'.
(ii) The court failed to see that the signature of the testatrix
differs.
(iii) The Court failed to appreciate the fact that the Will has
been written up in one stamp paper and two white
papers and it would appear that it was written up in
signed papers.
(iv) The scribe who is stated to be an electrician was not
examined.
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(v) The beneficiary participated in the execution of the 'Will'.
10. The plaint schedule property was purchased by the
testatrix and her husband, late Kumaran, as per Ext.A1 dated
27.11.1962. Their marriage was an intercaste marriage. As per
Ext.A2 dated 28.9.1972, late Kumaran released his share in the
property to the testatrix. The couple had no children. Late Kumaran
died on 24.09.2013 and the testatrix died on 24.10.2014. Ext.A17
Will was executed on 28.12.2012. The witnesses examined have
stated that the husband of the testatrix, Late Kumaran, was present
at the time of the execution of the Will. The plaintiff is not a blood
relative of the testatrix or her husband but according to him, he was
taking care of the testatrix and her husband. The 1 st defendant club
claimed that the club and its members were looking after the
testatrix, and the plaint schedule property was gifted to them as per
an oral gift, and they were put in possession.
11. The title through an oral gift, put forward in defense,
does not call for any consideration at all since a transfer of
immovable property of an extent of 18.49 acres and has a fair value
of Rs.1 lakh per acre cannot be made without a registered
document in writing.
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12. Regarding the requirements of Section 63 of the
Succession Act, the two witnesses to the Will, Ajimon, and Joymon,
were examined as PW3 and PW2, respectively, and their deposition
would show that the requirement of the statutory provision has
been complied with. The trial court, as well as the First Appellate
Court, has considered the evidence of the witnesses and has found
that nothing tangible, which would erode the veracity of depositions,
was brought out during cross-examination. No interference is called
for, on the above findings of fact, in the exercise of the jurisdiction
under Section 100 of the Code of Civil Procedure.
13. The next question is whether there is any perversity in
the judgments of the trial court and the First Appellate Court, in the
appreciation of evidence regarding the suspicious circumstances put
forward by the 1st defendant. The trial court and the First Appellate
Court found that there was nothing suspicious in the testatrix
bequeathing the property to the plaintiff who was not a relative. The
court found that the plaintiff was looking after the affairs of the
testatrix, taking her to the Hospital, bank etc., based on the
depositions of DW5 to 7, who are bank employees and supported by
Exts. A9, A10 series, A11 to 13, and X7 series documents. Ext.A14
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series photographs and Ext.A15 CD also evidenced the fact that the
plaintiff had performed the last rituals pursuant to the death of the
testatrix. None of the evidence stated above was contradicted in the
cross-examination of the witnesses or by positive evidence tendered
by the defendants. The bank employees were, in fact, defence
witnesses. The findings of the Courts on this aspect cannot be
termed as perverse.
14. Another aspect pointed out was that the scribe was an
electrician/CCTV technician, and the testatrix, who was involved in
several litigations, would have had the Will executed by an advocate
or document writer. PW1 explained the above aspect by stating that
the testatrix had taken an opinion from one Advocate Mathew,
practicing in the High Court, that the Will need not be registered and
that the testatrix had hence dictated the contents of the Will to the
scribe. As held by the First Appellate Court, this is not a
circumstance sufficient to disbelieve a Will which is otherwise proved
to have been executed in terms of the statutory provisions.
15. As there is no legal requirement that the Will should be
executed on stamp paper, the contentions that blank papers were
used to write up the Will are of no consequence. A perusal of the
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Will does not also warrant a conclusion that words have been
squeezed in to fit the paper, which already bore the signature of the
testatrix. Though a contention was made that the signatures of the
testatrix differ, no step had been taken by the defendants to get the
document examined by an expert. So also, such a contention is self-
contradictory to the contention of the defendant that the Will was
written up in papers that were pre-signed by the testatrix. Hence
the findings of the trial court and the First Appellate Court that there
are no suspicious circumstances also do not require any
interference. The Counsel for the appellant relied on the decision of
the Hon'ble Supreme Court in Shivakumar and others v.
Sharanabasappa and others [2020 KHC 6339], to submit that
the propounder has a duty to lead evidence sufficient to remove the
suspicious circumstances that shroud the Will. The said decision can
have no application in a case where the trial court, the First
Appellate Court, and this Court are convinced that there are no
suspicious circumstances as alleged.
16. The Counsel for the 1st respondent placed reliance on the
judgments of the Hon'ble Supreme Court in Gurnam Singh v.
Lehna Singh [(2019) 7 SCC 641], Saroja Ammal v.
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Deenadayalan [2022 SCC OnLine SC 745], Kavita Kanwar v.
Pamela Mehta and others [(2021) 11 SCC 209], Swarnalatha
and others v. Kalavathy and others [2022 SCC OnLine SC
381] in support of his contentions in support of the Will.
17. In Gurnam Singh (supra), the Apex Court held that the
interference by the High Court in second appeal under Section 100
CPC, by reappreciating the entire evidence on record is not
permissible. The court further held that the High Court cannot
substitute its own opinion for that of the First Appellate Court unless
it finds that the conclusions drawn by the Court were erroneous
being contrary to the mandatory provisions of the applicable law or
Contrary to the law as pronounced by the Supreme Court or based
on inadmissible evidence or no evidence. Saroja Ammal (supra)
was also a case where the Hon'ble Supreme Court set aside the
judgment of the High Court, by which the High Court had found that
a Will which was held to be genuine by two courts, was not genuine.
Kavita Kanwar (supra) and Swarnalatha (supra) are also cases
where the Hon'ble Supreme Court has spelt out the contours within
which the jurisdiction under Section 100 is to be exercised. The
principles laid down in the above judgments strengthen the
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conclusions drawn by this Court in the previous paragraphs. It is
also to be remembered that the appellant/1 st defendant does not
have any claim of title over the properties and is only banking on
their possession, which is also not legally explained, and, is not a
person who could have any say with regard to the manner in which
the testatrix should have disposed of her properties, unlike the case
of a probable heir.
18. No substantial questions of law arise in this appeal,
justifying the entertainment of this appeal. The second appeal fails
and is dismissed.
Sd/-
T.R. RAVI
JUDGE
dsn
