Mohinder Singh & Ors. vs Bullu Ram (Deceased), Through His LRs Smt. Kaushalya Devi & Ors.

1.

Whether deceased Rajo Devi executed a valid Will dated June 21, 1990, in favour of the plaintiff, as alleged? OPP.

2.

Whether the suit land is owned and possessed by the plaintiff, as alleged? OPP.

3.

Whether the sale by defendant No.1 in favour of defendant No.2 is illegal, unauthorised and null and void, as alleged? OPP.

4.

Whether the plaintiff is entitled to the relief of rendition of accounts against defendant No.1 as also receipt of sale proceeds of the suit land realised by the said defendant, as alleged? OPP.

5.

Whether further sale made by defendant No.2 in favour of defendants No.4 to 7 vide sale deed dated March 20, 1992 is illegal, unauthorised and null and void, as alleged? OPP.

6.

Whether the suit as framed is not maintainable, as alleged? OPD1, D2 and D4 to D7.

7.

Whether deceased Rajo Devi executed a valid Will dated September 26, 1990 in favour of defendant No.1, as alleged? If so, its effect? OPD1.

8.

Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD1, D2 and D4 to D7.

9.

Whether the defendant No.2 purchased the suit land for a valuable consideration and without notice, as alleged? OPD2.

10.

Whether the plaintiff is estopped from suing of his acts and conduct, as alleged? OPD2.

11.

Whether the defendants No.4 to 7 are bona fide purchasers for value and without notice, as alleged? OPD4 to D7.

12.

Whether the suit land is possessed by defendants No.4 to 7, as alleged? OPD 4 to D7.

13.

Relief.

Substantial Questions of Law No. 1 & 2:

The law is clearly laid down in Halsbury's Laws of England, Vol. XV, p. 106, para. 209, and the cases therein cited bear out the contention that a suit can be brought by a legal representative to set aside a document which has been induced by fraud or undue influence. I may refer to the cases of Gresley v. Moustey [(1859) 4 De G. & J. 78.], Holman v. Loynes [(1854) 4 De G.M. & G. 270.], Morley v. Loughnan [[1893] 1 Ch. 736.], and Allcard v. Skinner [(1887) 36 Ch. D. 145 at p. 187]. To the same effect is the case of Twycross v. Grant [(1878) 4 C.P.D. 40]. I think that section 35 of the Specific Relief Act also supports this contention. Section 35 says:

“Any person interested in a contract in writing may sue to have it rescinded, and such rescission may be adjudged by the Court.”

The wording of the section is not that a party to a contract may sue to have it rescinded, but that any person who is interested in a contract in writing may do so. I think the heir is a person interested in a contract in writing which is sought to be set aside.

I think, therefore, that the suit lies in this case at the instance of the plaintiffs who are the heirs of Dashrath. On the merits of the case, we have reached the conclusion that Mharu is a reliable witness and that the sale deed was passed by Dashrath on the false representation of defendant No. 1. We, therefore, think that the view of the lower Court is correct, and that this appeal should be dismissed with costs.

“7.

To hold that Section 19A of the Contract Act is confined solely to the parties to the contract might lead to some extraordinary results. Persons on their deathbeds are frequently induced to enter into contracts by means of undue influence, yet if the respondents' contention was sound, such contracts could but rarely be set aside.

8.

However, the matter is concluded by authority if any authority is needed, because it was decided in 51 Bom 133 [Shravan Goba v. Kashiram Deviji, 1927 Bom 384: 100 IC 932: 29 Bom LR 115: 51 Bom 133.] that the option of avoiding a contract procured in any of the ways mentioned in S. 19 and S. 19A is exercisable by the party's representatives unless at the date of his death his has lost such rights by acquiescence of otherwise. There is no suggestion in this case that Bauli Chand had lost the rights by acquiescence or otherwise and the true facts tend strongly to show that Bauli Chand was never in a position after this contract to exercise his will at all. In my view the present appellant could resist this claim as a representative of the vendor by pleading undue influence. The result, therefore, is that I am satisfied that this contract was induced by undue influence, if not by something worse and therefore that it was voidable at the option of Bauli Chand and now voidable at the option of his widow. Further, she can by way of defence to this claim plead that the contract was not binding upon her husband and that it gave Sri Ram no right whatsoever. It, however, has been pointed out by learned counsel for the respondents that as the vendor Bauli Chand received a benefit viz., Rs. 70 under the contract his widow should at least be made to repay that sum. I am far from satisfied that Bauli Chand received any benefit whatsoever under this or any other contract which he executed in favour of Sri Ram.”

14.

It would be interesting to note that such a question had been examined in the context of the provisions of Sections 15 to 19 of the Indian Contract Act, 1962. As noticed by Pollock & Mulla's Indian Contract Special Relief Acts (11th Edition Vol. I. page 275), in Sharvan Goba v. Kashiram Devji, AIR 1927 Bombay 384, Rash Behari Naskar v. Haripada Naskar, AIR 1934 Calcutta 762 and Mst. Manbhari v. Sri Ram, AIR 1936 All 672, various Court have taken the view that when consent in the agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable not merely at the option of the party whose consent was so caused but also at the option of such a party's representatives unless at the date of his death the original party had lost such an option by acquiescence or otherwise. Whether the successor in title of the party whose consent was produced by any such vitiating element would also have the option of avoiding such an agreement or any unconscionable or oppressive terms in the contract was not examined by this Court in the case of Soni Motiben (supra) from the above angle.

30.

The option of avoiding a contract procured in any of the ways mentioned in Sections 19 and 19A of the Contract Act is exercisable by the party's representatives, unless at the date of his death, he had lost it by acquiescence or otherwise

15.

Under Section 27(1) of the Specific Relief Act, 1963, “any party interested” in a contract may sue to have it rescinded, and such rescission may be adjudged by the court in the cases mentioned in clauses (a) and (b) of sub-section (1). Sub-section (2) of Section 27 refers to four exceptions to this rule. In Shravan Goba Mahajan v. Kashiram Devji [Shravan Goba Mahajan v. Kashiram Devji, 1926 SCC OnLine Bom 10: ILR (1927) 51 Bom 133], a Division Bench of the Bombay High Court, with regard to Section 35 of the Specific Relief Act, 1877 (which is the pari materia provision to Section 27 of the 1963 Act) held that an heir is a person interested in the contract which is sought to be set aside, thus, making it clear that the expression “any person interested” would include not just a party to the contract, but persons who may be heirs of one of the parties to the contract. A reading of this section would also show that, in all such actions in which a contract or instrument may be rectified or rescinded, no judgment in rem follows, as what is sought to be rectified or rescinded is by the parties to the contract or persons who may be their heirs or legal representatives. Third parties to the contract are not persons who can be said to be “any person interested”, particularly when Section 27(2)(c), which refers to third parties, is seen and contrasted with the expression “any person interested” in Section 27(1) — under Section 27(2)(c), third parties come in as an exception to the rule only when they have acquired rights in good faith, without notice and for value, during the subsistence of the contract between the parties to that contract.

10.

Section 60 of the Registration Act specifically provides that the certificate endorsed on the document, registered by the Registrar, shall not only be admissible in evidence for the purpose of proving that the document has been duly registered in the manner provided under the Act, but also that the facts mentioned in the document referred to in Section 59 have taken place as mentioned therein. It is now settled that the presumption of due execution of a document arises from the endorsement of the Sub-Registrar under Section 60 of the Act. As far back as in 1928 Privy Council in Sennimalai Goundan and another v. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of Section 60(2) read with Section 115 of the Evidence Act held that where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of the transaction. In that case, the plaintiff alleged that his father and brothers, with the intention of defrauding the plaintiff of his legitimate share in the family properties, entered into a fraudulent collusive partition. The Trial Court found that the plaintiff's case was proved, and it decreed the suit. In the appeal, it was held that the plaintiff failed to make out the alleged fraud and allowed the appeal. The decree of the Trial Court was set aside. The Subordinate Judge had found that the partition was unequal because the land allotted to the plaintiff was less than that allotted to the other brothers. It was found that contemporaneously with the partition, some land that fell into the share of plaintiff Karuppa were conveyed to his second wife, Nachakkal, by a registered sale deed. Nachakkal gave evidence that the transaction was bogus, as she never paid the consideration for the sale, though she admitted the execution of the sale deed before the Registrar. Her story that she was ignorant of the nature of the transaction, it was held, cannot be accepted as she had admitted the execution of the sale deed before the Registrar.

11.

A Division Bench of this Court, Kanwarani Madna Vati and another v. Raghunath Singh and others, AIR 1976 HP41, interpreting the provisions of Section 62 of the Registration Act, held that there is a presumption of correctness of the document if its execution is admitted before the Registrar. The Division Bench in para 20 observed:

"Under Section 60(2) of the Registration Act, the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in Section 59 have occurred as therein mentioned. Therefore, there is a presumption which attaches to the correctness of the endorsements made on the document by the Registering Officer. These endorsements show the presentation of the document personally by Smt. Madna Vati for registration. She was identified by Kr. Jowala Singh, and her signatures were also obtained by the Registering Officer on both the endorsements, i.e., the endorsement of the presentation and that of admitting the contents of the documents and the receipt of the consideration by her. In order to rebut this, it was necessary for defendant No.2 to have produced the Sub Registrar. She did not produce him in the witness box. Therefore, the presumption of correctness shall become conclusive."

12.

In the present case, as noticed earlier, there is an endorsement of the Sub Registrar to the effect that the contents were read over and explained to the vendor-plaintiff, Maina Devi and, therefore, the presumption is that the contents of the sale deed were read over and explained to her. The Sub Registrar (DW3) himself is categorical in his evidence that the contents of the sale deed were read over to Maina Devi. He duly proved the endorsements. Therefore, in the circumstances, the learned first Appellate Court was not right while reversing the findings of the Trial Court on the grounds that the contents of the sale deed were not read over or explained to the plaintiff.

13.

A Single Judge of this Court in Rewat Ram Sharma v. Munshi Ram (RSA No.242 of 1994) decided on December 13, 2001, relying upon Kanwarani Madya Vati, Sennimalai Goundan (supra) and Dinesh Chandra Guha v. Satchindannanda Mukherji, AIR 1972 Orissa235, held that admission of signatures on the endorsement made by the Registrar by an executant of the document in the absence of anything else to the contrary, would lead to the inference that the plaintiff was present before the Sub Registrar when the document was presented for registration and the onus to rebut the presumption under Section 60(2) the Registration Act was heavily on the plaintiff which the plaintiff did not discharge. In that case, the plaintiff's case of the plaintiff was that he had borrowed some money from the defendant and had agreed to mortgage his property in favour of the defendant. The plaintiff was taken to the Tehsil Headquarters for the purpose of executing the mortgage deed. His signatures were obtained by the defendant by making him believe that it was a mortgage deed, and later on, the defendant proclaimed that the property had been gifted to the defendant, and the plaintiff realised that, instead of the mortgage deed, a gift deed was executed from him fraudulently by the defendant. He repudiated the gift deed and filed a suit that the gift deed was a result of misrepresentation, fraud and undue influence on the part of the defendant. It is in this context that the Court held that Section 60(2) of the Evidence Act raises a presumption as to the correctness of the endorsement made on the document by the Registering Officer.”

17.

In Ningawwa v. Byrappa Shiddappa Hireknrabar AIR 1968, SC 956, the Hon'ble Supreme Court held as under:

"27.

There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."

18.

Indisputably, the sale deed in question is a registered one and is presumed to have been validly executed, and the onus of proof will be on those who want to offset the above presumption.

19.

In Prem Singh v. Birbal (2006) 5 SCC 353, it was held as under:

"27.

There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent No.1 has not been able to rebut the said presumption."

20.

In Vimal Chand Ghevarchand Jain and others v. Ramakant Eknath Jadoo (2009) 5 SCC 713, the Hon'ble Supreme Court held that a registered sale deed is presumed to be valid unless the contrary is proved. The onus is on the person who challenges the same to show that it is either not acted upon or is a sham transaction.

33.

To appreciate the findings arrived at by the courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh v. Birbal [Prem Singh v. Birbal, (2006) 5 SCC 353]. The relevant portion of the said decision reads as below : (SCC pp. 360-61, para 27)

“27.

There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”(emphasis supplied)

In view thereof, in the present case, the initial onus was on the plaintiff, who had challenged the stated registered document. ****

41.

The trial court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and more so because the documents bore her signature. The first appellate court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved, and the burden was duly discharged by the defendants.”

“COURTS SHOULD NOT CASUALLY DECLARE A REGISTERED DEED A 'SHAM', AS REGISTRATION CREATES A STRONG PRESUMPTION OF VALIDITY & GENUINENESS

31.

It is a settled position of law that a registered Sale Deed carries with it a formidable presumption of validity and genuineness. Registration is not a mere procedural formality but a solemn act that imparts a high degree of sanctity to the document. Consequently, a Court must not lightly or casually declare a registered instrument as a “sham”. Adopting the principles enunciated in Prem Singh v. Birbal, (2006) 5 SCC 353 (27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption……”), Jamila Begum (Dead) Through Lrs.v.Shami Mohd. (Dead) Through Lrs.,(2019) 2 SCC 727 (“16. The sale deed dated 21-12-1970 in favour of Jamila Begum is a registered document, and the registration of the sale deed reinforces the valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.….”), andRattan Singhv. Nirmal Gill, (2021) 15 SCC 300(“33. To appreciate the findings arrived at by the courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered…”), this Court reiterates that the burden of proof to displace this presumption rests heavily upon the challenger. Such a challenge can only be sustained if the party provides material particulars and cogent evidence to demonstrate that the Deed was never intended to operate as a bona fide transfer of title.

32.

The grounds typically accepted to challenge a registered Deed at the instance of the vendee/executant are fraud or want of capacity in any party or mistake of fact or fundamental illegality like where the Deed was executed under deceit or sold by a fraudster who did not own the land or where the Deed was executed without consideration, namely, if no money or value was actually exchanged despite recitals in the Deeds or where there was coercion or intimidation like where the seller was forced to sign without free consent.

33.

While the aforementioned grounds are illustrative and not exhaustive, this Court must caution against the growing tendency to challenge registered instruments ‘at the drop of a hat’. If the sanctity of registered documents is diluted, it would erode public confidence in property transactions and jeopardise the security of titles. In a society governed by the Rule of Law, registered documents must inspire certainty; they cannot be rendered precarious by frivolous litigation.”

“21.

It would also be noticed that the plaintiff has miserably failed to prove the plea of fraud. It is well settled that the plea of fraud must be specifically proved and cannot be based on mere suspicion. The party alleging fraud is to establish it beyond reasonable doubt with cogent evidence, and suspicion cannot be accepted as proof. Fraud, like any other charge of a criminal offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubt, and the same cannot therefore be based on suspicion and conjecture. “

18…… It is quite true that circumstantial evidence is not only sufficient but in many cases it is the only proof that can be adduced to establish fraud. But as was observed in the case of Mathura Pandey v. Ram Ruchya Tewaree 11 W.R. 482: 3 B.L.R. A.C. 108 by the Subordinate Judge, circumstances of mere suspicion should not be taken as proof of fraud, but the evidence must be sufficient to overcome the natural presumption of honesty and fair dealing. In approaching this question, one must be careful not to add an illustration to the observation made by the Privy Council many years ago, that Judges in India are perhaps somewhat too apt to see fraud everywhere. Moonshee Bazloor Raheem v. Jadonath Bose [1886-67] 11 M.I.A. 551: 8 W.R. P.C. 3: 2 Suther 59: 2 Sar. 259. It has been held in numerous cases that fraud is not to be presumed or inferred lightly. This cannot be too strongly emphasised, especially in a case like this. In this case, the plaintiff does not give any evidence of any circumstance which would lead to an inference of fraud.

“12.

….The party alleging the fraud is bound to establish it by cogent evidence and even if he creates some suspicion that cannot be accepted as proof. Unless the proved circumstances are incompatible with the hypothesis of the person charged with fraud having acted in good faith, they cannot be accepted as sufficient proof of fraud…..”

Substantial Question of Law No. 3:

“10.1.

The court has to consider two aspects: firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him.

10.2.

It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

10.3.

A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

(a)

The testator shall sign or affix his mark to the will, or it shall be signed by some other person in his presence and by his direction, and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

(b)

It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c)

Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of such signatures;

(d)

Each of the attesting witnesses shall sign the will in the presence of the testator; however, the presence of all witnesses at the same time is not required.

10.4.

For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

10.5.

The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;

10.6.

If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

10.7.

Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

10.8.

Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier;

10.9.

The test of judicial conscience has evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires consideration of factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; a sound, certain and disposing state of mind and memory of the testator at the time of execution; the testator executed the will while acting on his own free will;

10.10.

One who alleges fraud, fabrication, undue influence, etc., has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

10.11.

Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277]”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion, legitimate in nature, would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.”

“11.

A Will has to be proved like any other document subject to the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, that is, examination of at least one of the attesting witnesses. However, unlike other documents, when a Will is propounded, its maker is no longer in the land of the living. This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved. The onus lies on the propounder not only to prove due execution but to dispel from the mind of the court all suspicious circumstances which cast doubt on the free disposing mind of the testator. Only when the propounder dispels the suspicious circumstances and satisfies the conscience of the court that the testator had duly executed the Will of his free volition without coercion or undue influence, would the Will be accepted as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977) 1 SCC 369, this Court, referring to H. Venkatachala Iyengar v. B.N. Thimmajamma 1959 Supp (1) SCR 426^, enumerated the principles relating to proof of Will:—

“10.

***** **** **** ****

“1.

Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2.

Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

3.

Unlike other documents, the will speaks from the death of the testator, and therefore, the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4.

Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

5.

It is in connection with wills, the execution of which is surrounded by suspicious circumstances, that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question, and by reason of suspicious circumstances, the court has to be satisfied fully that the will has been validly executed by the testator.

6.

If a caveator alleges fraud, undue influence, coercion, etc., in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

“9.

In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, an adversary proceeding becomes in such cases a matter of the court's conscience, and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party that sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.”

12.

Similarly, in Ram Piari v. Bhagwant (1993) 3 SCC 364, this Court held that when suspicious circumstances exist, Courts should not be swayed by the due execution of the Will alone:

“3.

……………….Unfortunately, none of the courts paid any attention to these, probably because they were swayed by due execution even when this Court in Venkatachaliah case [AIR 1959 SC 443: 1959 Supp (1) SCR 426] had held that proof of signature raises a presumption about knowledge, but the existence of suspicious circumstances rebuts it…………….

13.

There is no cavil when suspicious circumstances exist and have not been repelled to the satisfaction of the Court; the Court would not be justified in holding that the Will is genuine since the signatures have been duly proved and the Will is registered. (AIR 1962 SC 567).

“10.

I am in agreement with the contention of Mr Mariaputham that suspicious circumstances ought to have been pleaded and urged. Those cannot be pleaded or urged for the first time before the appellate Court specially when the foundation of such a suspicious circumstance was not laid before the Probate Court nor pleaded otherwise Supreme Court in the case of P.P.K. Gopalan Nambiar v. Balakrishnan Nambiar reported in 1995 Supp (2) SCC 664 : (AIR 1995 SC 1852) observed that any suspicious circumstance ought to be urged by the objector should be pleaded and proved. Without such pleading and proof, it cannot be taken into consideration. A similar view was expressed by the Apex Court in the case of Trojan and Co. Ltd. v. Nagappa Chettiar reported in 1953 SCR 789: (AIR 1953 SC 235), as well as in the case of Srivenkataramana Devaru v. State of Mysore reported in 1958 SCR 895: (AIR 1958 SC 255 at p. 263, para 14) where the Apex Court laid down the law as such:

"The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of the parties on the basis of that finding. We have accordingly declined to entertain this contention."

11.

In this view of the matter, this Court is not inclined to entertain such suspicious circumstances, which were neither pleaded nor proved before the probate Court…”

29.

The High Court was, in our opinion, wrong in concluding that there was the absence of reasonable and probable cause because the action, in view of the notification of the Central Government, was unauthorised or illegal. Illegality does not by itself lead to such a conclusion. Further, there is no truth in the appellant's case that on 1-10-1977, at the time of seizure, he informed Defendants 2 and 3 about the gazette notification. The point is that such an assertion was not made even in the bail application moved after arrest. As to the contention that the appellant and the owners of paddy showed permits to Defendants 2 and 3, we do not find sufficient pleading on this aspect. In any case, we find that no question was put when the 2nd defendant was cross-examined. As pointed out by Sarkar on Evidence (15th Edn., 1999, Vol. 2, p. 2179) in the context of Section 138 of the Evidence Act,

“Generally speaking, when cross-examining, a party's counsel should put to each of his opponent's witnesses, in turn, so much of his own case as concerns that particular witness or in which he had a share.”

“15.

Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to the factum of execution of the sale deed; PW 1 and PW 2 have not been cross-examined as to the factum of execution of the sale deed. The cross-examination is a matter of substance, not of procedure; one is required to put one's own version in the cross-examination of the opponent. The effect of non-cross-examination is that the statement of the witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. The party is required to put his version to the witness. If no such questions are put, the Court will presume that the witness's account has been accepted, as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177: AIR 1958 P&H 440]

16.

In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, 1943 SCC OnLine MP 128: AIR 1945 Nag 60], it has been laid down that the matters sworn to by one party in the pleadings, not challenged either in pleadings or cross-examination by the other party, must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian [A.E.G. Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44: AIR 1961 Cal 359] has laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram [Kuwarlal Amritlal v. Rekhlal Koduram, 1949 SCC OnLine MP 35: AIR 1950 Nag 83] has laid down that when attestation is not specifically challenged, and the witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra [Karnidan Sarda v. Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288: AIR 1940 Pat 683] has laid down that it cannot be too strongly emphasised that the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff.

“32.1.

In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15 (relevant portion of para 15) is reproduced below : (SCC pp. 188-89)

“15.

… The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties, and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect a conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the appellate court. … while reversing a finding of fact, the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.”

32.2.

In H.K.N. Swami v.Irshad Basith (2005) 10 SCC 243, this Court again reiterated the same principle in para 3 of the judgment: (SCC p. 244)

“3.

The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as well as on facts, and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case, has not recorded any finding either on facts or on law. Sitting as the first appellate court, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.”

32.3.

In 2015, this Court again, in Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521, considering the previous judgment, recorded its view in paras 18 and 19, which are reproduced hereunder : (SCC p. 396)

“18.

In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial court can be sustained or not and if so, how, and if not, why.

19.

Being the first appellate court, it was the duty of the High Court to have decided the first appeal, keeping in view the scope and powers conferred on it under Section 96, read with Order 41 Rule 31CPC mentioned above. It was unfortunately not done, thereby resulting in prejudice to the appellant, whose valuable right to prosecute in the first appeal on facts and law was adversely affected, which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason that we were unable to uphold the impugned judgment [Vinod Kumar v. Gangadhar, First Appeal No. 173 of 1999, order dated 21-3-2013 (MP)] of the High Court.”

32.4.

Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J., was a member) in Manjula v. Shyamsundar, (2022) 3 SCC 90: (2022) 2 SCC (Civ) 33], reiterated the same view in para 8 thereof, which is reproduced hereunder: (SCC p. 96)

“8.

Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:

(a)

points for determination;

(b)

the decision thereon;

(c)

the reasons for the decision; and

(d)

where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of the appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect a conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31CPC and non-observance of these requirements lead to infirmity in the judgment.”

33.

From the above settled legal principles on the duty, scope and powers of the first appellate court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular, which had been relied upon by the trial court. The impugned judgment [K.P. Basavaraj v. Somakka, 2006 SCC OnLine Kar 992] of the High Court is thus unsustainable in law and liable to be set aside.”

“19.

In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs. (2001) 2 SC 407, this Court held that the court of appeal has a duty to apply its mind to all issues raised before it and to discharge such duty, it must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein:

"The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties, and unless restricted by law. The whole case is open for rehearing, both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the Appellate Court. While reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it."

20.

In the case of Madhukar and Ors. Vs. Sangram and Ors. (2001) 4 SCC 756, this Court, while reiterating the principles laid down in the Santosh Hazari Judgment (Supra), observed that the court of first appeal has a duty to record its findings qua all the issues raised before it, and in cases where the High Court fails to do the same, the matter must be remanded to the same court again for fresh adjudication..”

22.

The abovementioned discussions and judgments, when contextualised to the present case, would show that the High Court was under an obligation to consider the cross objections filed by the Appellants herein. Since such an obligation was not discharged while passing the judgment in appeal, we are of the considered opinion that the matter is fit for remand to the High Court for fresh adjudication on the grounds raised in the cross objections during the appeal by the appellants herein.

“3.

It is a settled principle of law that the right to file the first appeal against the decree under Section 96 of the Code of Civil Procedure is a valuable legal right of the litigant. The jurisdiction of the First Appellate Court, while hearing the First Appeal, is very wide, like that of the learned trial Court, and it is open to the appellant to attack all findings of fact or/and/or law in the first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a different conclusion from that of the trial Court. While doing so, the judgment of the Appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. While reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the First Appellate Court had discharged the duty expected of it.

4.

The scope, ambit and power of the First Appellate Court while deciding the first appeal have been the subject matter of various judicial pronouncements, and I may refer to the pronouncement of the Hon'ble Supreme Court in Shasidhar and others vs. Smt. Ashwini Uma Mathad and another, (2015) AIR SCW 777, wherein it was held as follows:

"11.

Having heard learned counsel for the parties and on perusal of the record of the case and examining the issue arising in this appeal, we find force in the submissions of the learned counsel for the appellants.

12.

The powers of the first appellate Court, while deciding the first appeal under Section 96, read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.

13.

As far back in 1969, the learned Judge -V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, (1969) AIR Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under:

"1.

The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit, which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as well as his possession and claimed both for himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.

2.

An appellate court is the final Court of fact, ordinarily and therefore a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him, and I have no doubt that in the present case, the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is a furious contest between the counsel for the appellant and the respondent, they appear to agree with me in this observation....."

(Emphasis supplied)

14.

This Court, in a number of cases, while affirming and then reiterating the aforesaid principle, has laid down the scope and powers of the first appellate Court under Section 96 of the Code. 15. We consider it apposite to refer to some of the decisions. 16. In Santosh Hazari vs Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179, this Court held (at pages 188- 189) as under:

".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties, and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court ... and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it............"

17.

The above view has been followed by a three-judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756, wherein it was reiterated that, sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

18.

In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court (at p. 244) stated as under:

"3.

The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as well as on facts, and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case, has not recorded any finding either on facts or on law. Sitting as the first appellate court, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."

19.

Again, in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court (at pp. 303 -04) observed as follows:

"2.

A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."

20.

Again, in B.V Nagesh & Anr. vs. H.V.Sreenivasa Murthy, (2010) 13 SCC 530, this Court, taking note of all the earlier judgments of this Court, reiterated the aforementioned principle with these words:

"3.

How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon;

(c)

the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties, and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right, and the parties have a right to be heard both on questions of law and on facts, and the judgment in the first appeal must address itself to all the issues of law and fact and decide them by giving reasons in support of the findings. (Vide Santosh Hazari v.Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v.Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic, and none of the relevant aspects has even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of the considerations that are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with the law."

21.

The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174. This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, (2014) 12 Scale 171."

5.

Similar reiteration of law can be found in the subsequent judgments of the Hon'ble Supreme Court in Union of India vs. K.V. Lakshman and others, (2016) AIR SC 3139 and in Laliteshwar Prasad Singh & Ors. vs. S.P. Srivastava (deceased) through LRs, (2017) 2 SCC 415.

8.

Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for the filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:

(a)

points for determination;

(b)

the decision thereon;

(c)

the reasons for the decision; and

(d)

where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of the appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC, and non-observance of these requirements leads to infirmity in the judgment.

Additional Submissions:

Final Order: