Rajkishore Panda and Another vs Banitia Madhya Engrajee Bidyapitha and Others

Behera, J.—The contesting defendants in a suft instituted by the respondents Nos. 1 and 2 as the plaintiffs for grant of Letters of. Administration u/s 276 of the Indian Succession Act are in appeal against the decree passed by the learned District Judge, Balasore.

Briefly stated, the case of the respondent Nos. 1 and 2 was that the late Jujesti Panda, who died on June 11, 1967 leaving no heirs or issues, being a religious-minded person, wanted to bequeath all his properties for good and religious purposes and accordingly on Mar. 17, 1967, he executed an unregistered Will (Ex. 1) scribed by Ramakrushna Mohanty (P.W. 1) and attested by Krushna Mahala (P.W. 2) and Bhairab Charan Pati (P.W. 3) at Bhadrak, could riot get it registered as it was already late in the day, returned home and having fallen ill and having learnt that registration of such document was not necessary, made over the same to the legatees providing for bequeathing of properties in favour of the Banitia Middle English School represented by the then Secretary and Shri Jateswar Mahadeb through Sebayat Marfatdar. The third legatee Shri Ganesh Jew Thakur had been represented through the Sebayat Marfatdars (defendant Nos. 1 and 2). This suit had been contested by the appellants. They had claimed that they belonged to the same family as that of the testator and were entitled to succeed to his properties in the absence of other heirs. According to them, the Will was a forged document manufactured by the scribe and the attesting witnesses with the help of some villagers and Jujesthi, suffering as he was from dropsy for about four months prior to his death, was not in proper health and fit state of mind to execute any Will.

On these pleadings, issues were framed and the parties went to trial. Reliance was placed by both the sides on oral and documentary evidence. On a consideration thereof, the learned District Judge decreed the suit.

Mr. R.C. Mohanty, the learned counsel for the appellants, has challenged the findings recorded by the learned District Judge as unfounded and has contended that the evidence would establish the case of the contesting defendants. An application has been made in this Court under Order 41, Rule 27 of the CPC (for short ''the Code'') for reception of additional evidence, viz., a registered deed of sale said to have been executed by Jujesti in favour of Uddhab Charan Barik in 1963, to show that the signatures appearing in the Will (Ext. 1) were not his signatures as would be seen on a comparison of the signatures appearing in Ext. 1 and the sale deed. The prayer for reception of additional evidence has been opposed on behalf of the respondent Nos. 1 and 2. It has been contended by Mr. Mohanty for them that the application is not to be accepted in view of the provisions of Order 41, Rule 27 of the Code. It has been submitted on their behalf that the findings recorded by the learned District Judge are well-founded and Ext. 1 had duly been executed and attested by the testator and was free from any suspicious features.

Coming first to the application under Order 41, Rule 27 of the Code, it has been strenuously urged by the learned counsel for the respondents that the registered sale deed purporting to contain the signature of late Jujesti Panda, the testator, which is sought to be introduced as additional evidence, obviously for a comparison of the signatures of the testator, cannot be accepted in evidence as the testator''s signatures at some places have been erased and at other places, left obscure and also for the reason that the application does not satisfy the tests laid down for acceptance thereof at the appellate stage. After a close look at the document, we have no hesitation to express that there have been suspicious features and erasures as regards the signatures of Jujesti Panda (the testator in Ext. 1) in the sale deed in question and such a document, if admitted in evidence, would serve no purpose.

Passing on to the legal question, it is well-established that Order 41, Rule 27 of the Code is not intended to allow an unsuccessful litigant to patch up the weak parts of his case and fill in the lacuna in the appellate Court. Under Clause (1)(b) thereof, additional evidence can be admitted only when the appellate Court requires it to enable it to pronounce the judgment or for any other substantial cause. Reception of such evidence should be the necessity of the Court for a proper adjudication of the dispute between the parties. In Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 , the Supreme Court has laid down :

"The true test, therefore, is whether the appellate Court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."

In K. Venkataramiah Vs. A. Seetharama Reddy and Others, , the Supreme Court has observed and held :

"Under Rule 27(1), the appellate Court has the power to allow additional evidence not only if it requires such evidence ''to enable it to pronounce judgment'', but also for ''any other substantial cause''. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence ''to enable it to pronounce the judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code."

As held by the Supreme Court in The Official Liquidator Vs. Raghawa Desikachar and Others, it is apparent that by the terms of Rule 27 of Order 41 of the Code, it is only where the Court has improperly refused to admit evidence or where the appellate Court requires additional evidence to be recorded in order to enable it to pronounce judgment that it can make such an order.

It has been a well-settled principle of law that the discretion given to the appellate Court to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied for dealing with an application for additional evidence is whether the appellate Court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. See Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, and The Land Acquisition Officer, City Improvement Trust Board Vs. H. Narayanaiah and Others, .

Judged in the light of the settled principles laid down in the aforesaid reported cases with regard to the provisions made in Order 41, Rule 27 of the Code, the application made in this Court for reception of additional evidence does not stand the tests. The suit had been instituted in 1968. The impugned decree had been passed in 1973. The contesting defendants, who are the appellants herein, had sufficient time and opportunity to look for and adduce documentary evidence to substantiate their case that the signatures appearing in Ext. 1 were not those of the testator. It is not a case where an application made for reception of any such evidence had been rejected by the trial Court. Both the sides have led evidence, oral and documentary, on the basis of which the findings have been recorded. There is no necessity for this Court for reception of additional evidence in order to come to a just decision. The application made under Order 41, Rule 27 of the Code is devoid of merits and is rejected.

Coming to the merits of the cases put forth by both the sides, it is noticed that on a careful consideration of the evidence adduced by both the sides and for clear and convincing reasons, the learned District Judge has allowed the application for issue of the Letters of Administration. The facts set out by both the parties in their pleadings, the oral and documentary evidence on which they sought to establish their respective cases and the reasons given by the learned trial Judge in support of his findings need not be re-stated in this affirming judgment. See Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, .

Will is a document, registration of which is optional under the provisions of the Indian Registration Act. Thus non-registration of a Will would not, by itself, be a suspicious circumstance surrounding the Will. In the present case, however, a reasonable explanation has been offered from the side of the plaintiffs as to how and in what circumstances, the deed was not got registered by the testator. The evidence would indicate that by time of execution and attestation of Ext. 1, it became late for which the testator returned home and then he fell ill and in addition, was informed that registration of such a document was not necessary. The tact of non-registration of Ext. 1 cannot be held to be a suspicious feature.

Suspicious features in a proceeding, of this nature are not to be assumed without any basis. However, if there are any suspicious circumstances, it is for the propounder to explain them to the satisfaction of the Court. Before a Will can be accepted and either probate or Letters of Administration can be granted, the burden is on the propounder to convince the Court that it was the last Will of the testator. In the absence of the testator, the Court is to satisfy itself that what is contained in the document represents the testament of the deceased and that the Will embodies the intention of the testator. This is necessary for proper adjudication and because the terms of the Will would disturb the normal succession or inheritance and therefore, there is necessity of circumspection. A perusal of the impugned order would show that the learned District Judge was alive to this responsibility on his part and had scanned the evidence carefully before coming to his conclusion.

The Will (Ext. 1) executed by the testator had been scribed by P.W. 1 who had testified in the court that he had read over and explained the contents of the Will to the testator whereafter he signed the document. Ext. 1/1, the endorsement made on the Will, would support this version of P.W. 1. P.Ws. 2 and 3, the two attesting witnesses, had duly proved the execution of the Will. The evidence of these three witnesses would undoubtedly show that voluntarily and after fully knowing and understanding the nature of the document he was about to execute, the testator had executed the Will. Merely because the contents of the document have been written in one ink and the signatures have been given in another, Ext. 1 is not to be thrown over board by holding that it is suspicious. An explanation had been given in this regard by P.Ws. 1 to 3 long after the execution of the Will and the learned District Judge has discussed this aspect of the case and concluded that there was no suspicion about it.

As observed by the learned District Judge and noticed by this Court at the hearing, there are no suspicious circumstances regarding the execution of the Will (Ext. 1).

Thus we would conclude that Ext. 1 was duly executed by the testator. It has been held by the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act and it would be idle to expect proof thereof, as in the case of proof of other documents, with mathematical certainty. The analysis of evidence as discussed above satisfies the requirements of due execution of Ext. 1 for which we hold the same to be genuine and valid.

It is a ease which depends on an appreciation of the oral evidence adduced by both the sides with regard to the execution of the Will. The trial court had undoubtedly the advantage of recording the evidence and marking the demeanour of the witnesses. The findings of facts recorded by the trial court on an appreciation of the evidence recorded by it are not to be lightly brushed aside by the appellate court, See Narayan Mishra and Others Vs. Champa Dibya (dead) and Others, . The evidence on record would not warrant a conclusion, as rightly found by the trial court, that; the state of health of the testator was such at the time of the execution of the Will that he was not in a position to execute it. The evidence would not warrant a conclusion that the testator was not in a sound state of health and there was no material to come to a finding that he had been incapacitated owing to imbalance of mind.

For the foregoing reasons, the findings recorded by the learned District Judge are not to be dislodged by this court. The Will (Ext. 1) had duly been executed by the testator and the plaintiffs were entitled to the issue of the Letters of Administration.

The appeal fails and is dismissed, leaving the parties to bear their own costs of this appeal in the circumstances of the case.

P.C. Misra, J.

I agree.