Supreme Court of India
S.R. SRINAVASA AND ORS.versusS. PADMAVATHAMMA
- Citation
- 2010 INSC 236
- Decided
- 22 April 2010
- Disposal
- Disposed off
- Bench
- V S SIRPURKAR
Holding
The Will dated 18‑June‑1974 was not proved to be genuine, and the plaintiffs inherit the property under Section 15(2) of the Hindu Succession Act.
Summary
The suit concerned a schedule property inherited by the mother (P) after her husband's death. After P's death, her daughter I possessed the property, but upon I's death, Defendant No.1 (a relative of P) took possession and claimed ownership based on a Will dated 18‑June‑1974 allegedly executed by P in favour of I. The plaintiffs filed a suit for declaration of ownership, asserting that the Will was not genuine and that they were entitled to inherit under Section 15(2) of the Hindu Succession Act. The trial court dismissed the suit, the first appellate court reversed that decision, and the High Court restored the trial court's dismissal. The Supreme Court held that the Will was not proved to be genuine because the statutory requirements of attestation were not satisfied, the scribe could not be treated as an attesting witness, and numerous suspicious circumstances surrounded its execution. Consequently, the burden of proving the Will rested on the propounder, who failed to remove reasonable doubt. The Court allowed the appeal, set aside the High Court judgment, and restored the first appellate court's decision, confirming the plaintiffs' right to inherit under Section 15(2).
Issues considered
- The genuineness and proof of the Will dated 18‑June‑1974.
- Whether the burden of proving the Will lies on the propounder and how suspicious circumstances affect that burden.
- Whether the scribe of a Will can be considered an attesting witness under the Evidence Act.
- Whether registration of a Will alone suffices to establish its authenticity.
- Whether the plaintiffs inherit the property under Section 15(2) of the Hindu Succession Act if the Will is invalid.
Legislation cited
- Evidence Act, 1882s. 63, s. 68
- Hindu Succession Act, 1956s. 15(1), s. 15(2)(a)
Subjects
WillGenuinenessBurden of proofAttesting witnessHindu Succession ActIntestate successionSuspicious circumstancesRegistration of WillScribe
Judgment
[2010] 4 S.C.R. 981
S.R. SRINAVASA AND ORS. A
v.
S. PADMAVATHAMMA
(Civil Appeal No. 4623 of 2005)
APRIL 22, 2010
B
[V.S. SIRPURKAR AND SURINDER SINGH NIJJAR, JJ.]
Will:
Execution of Will and its genuineness - Burden to prove c
- HE1ld: The initial burden is on the propounder to remove all
the reasonable doubts - Presence of suspicious
circumstances make initial burden heavier - Will in respect
of suit property in favour of one of the daughter - No reason
given as to why the other legal heirs were excluded from 0
inheritance - None of the attesting witnesses examined - No
reason given as to why the Will was presented before the Sub-
Registrar on two separate occasion for registration - Non-
ex amination of Sub-Registrar - Active participation of sole
beneficiary in writing and registering the Will - Cumulative E
effect of all the circumstances would create suspicion about
genuineness of Will - Registration by itself not sufficient to
remove suspicion - Such suspicion cannot be removed by
mere assertion of propounder that the Will bore signature of
testator or that the testator was in sound and disposing state
of mind at the time of making Will - Thus, Will not proved to F
be genuine - Evidence Act, 1882 - ss. 63, 68 - Hindu
Succession Act, 1956 - s.15(2)(a).
Attesting witness - Scribe of a Will - Held: Does not
become attesting witness - It is essential that the witness G
should put his signature animo attestandi, that is for the
purpose of attesting that he saw executant sign - If a person
puts his signature _on the document to certify that he is a scribe
or an identifier or a registering officer then he is not signing
981 H
,
982 SUPREME COURT REPORTS [2010] 4 S.C.R.
A in the capacity of an attesting witness - Evidence Act, 1882
- ss. 63, 68 - Witness.
The suit property devolved upon 'P' who was the
mother of plaintiff and defendant 4 after death of their
8 father. One of the sisters of plaintiff, 'I' was staying with
the mother and looking after mother till she died . 'I'
continued to be in possession of suit property. When 'I'
died, her cremation was performed by her cousin, the
defendant 1. Thereafter, Defendant 1 remained in
C possession of suit property and inducted defendant 2
and 3 as tenant.
The plaintiff filed a suit for declaration that she and
defendant 4 were the absolute owner of the suit property.
The defence of defendant 1 was that on 18.6.1974, the
D mother of plaintiff had executed Will in favour of 'I', and
since there was no intestate succession, neither the
plaintiff nor the defendant 4 could succeed to the suit
property. The trial court dismissed the suit holding that
the plaintiffs did not seriously dispute the execution of
E Will by 'P' in favour of 'I' and in fact admitted the execution
of the Will in a subsequent suit being O.S. no. 233 of 1998
which was filed by the appellants as the legal heirs of the
plaintiff. The first appellate court reversed the judgment
of trial court. On appeal, High Court restored the
F judgment of trial Court. Hence the appeal.
Allowing the appeal, the Court
HELD: 1.1. It is not disputed that respondent No.1
was a rank outsider. He was not a lineal descendant of
G 'P'. He was son of P's sister. The property would be
inherited by the appellants under Section 15(2) of the
Hindu Succession Act if the Will dated 18.6.1974 was held
not to be genuine. The basic aim of Section 15(2) is to
ensure that inherited property of an issueless female
H
S.R. SRINAVASA AND ORS. v. S. 983
PADMAVATHAMMA
Hindu dying intestate goes back to the source. It was A
enacted to prevent inherited property falling into the
hands of strangers. This is also evident from the
recommendations of the Joint Committee of the Houses
of Parliament. [Paras 18, 19, 21] [997-F; 998-D-E; 999-D-
E] B
State of Punjab v. Ba/want Singh 1992 Supp (3) SCC
108; V. Dandapani Chettiar v. Balasubramanian Chettiar
(2003) 6 sec 633, relied on.
Jayanti/al Mansukh/al and another v. Mehta Chhana/a/ C
Amba/al AIR 1968 Gujarat 212; Palanivelayutham Pillai and
others v. Ramachandran and others (2000) 6 SCC 151;
Somnath Berman v. Dr SP. Raju and another AIR 1970 SC
846; Smt. Jaswant Kaur v. Smt. Amrit Kaur and others AIR
1977 SC 74, referred to. D
1.2. By virtue of Section 15(2)(a) of the Act, the
appellants would inherit the property in dispute. This right
was sought to be defeated by defendant No.1 on the basis
of the Will dated 18.6.1974, allegedly executed by 'P'. E
Defendant No.1 claimed that the plaintiffs cannot claim to
'inherit' the property on the basis of intestate succession.
Undoubtedly, therefore, it was for defendant No.1 to
prove that the Will was dury executed, and proved to be
genuine. [Para 23] [1001-G-H; 1002-A]
F
H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959
Supp (1) SCR 426; Jaswant Kaur v. Amrit Kaur (1977) 1
sec 369, relied on.
1.3. None of the attesting witnesses were examined. G
The scribe, who was examined as DW.2, did not state that
he had signed the Will with the intention to attest. In his
evidence, he merely stated that he was the scribe of the
Will. He even admitted that he could not remember the
names of the witnesses to the Will. It is essential that the H
984 SUPREME COURT REPORTS [2010] 4 S.C.R.
A witness should have put his si9nature animo attestandi,
that is, for the purpose of attesting that he has seen the
executant sign or has received from him a personal
acknowledgment of his signature. If a person puts his
signature on the document for some other purpose, e.g.,
B to ce1tify that he is a scribe or an identifier or a registering
offic~r, he is not an attesting witness. The said test was
not satisfied by DW.2 the scribe. The effect of subscribing
a signature on the part of the scribe cannot be identified
to be of the same status as that of the attesting
c witnesses. [Paras 26, 27] [1004-B-H]
ML. Abdul Jabbar Sahib v. M. V. Venkata Sastri & Sons
(1969) 1 SCC 573; N. Kama/am v. Ayyasamy (2001) 7 SCC
503, relied on.
D 2.1. There is no admission about the genuineness or
legality of the Will either in the plaint of OS No. 233 of 1998
or in the evidence of PW-1. It is undoubtedly correct that
a true and clear admission would provide the best proof
of the facts admitted. It may prove to be decisive unless
E successfully withdrawn or proved to be erroneous. The
High Court erred in holding that there was no need for
independent proof of the Will, in view of the admissions
made in OS No.233 of 1998 and the evidence of PW1. In
fact there was no admission except that 'P' had executed
F a Will bequeathing only the immovable properties
belonging to her in favour of 'I'. The First Appellate Court
correctly obs~rved that the said admission was .only
about the making of the Will and not the genuineness of
the Will. The statements contained in the plaint as well as
G in the evidence of PW1 would not amount to admissions
with regard to the due execution and genuineness of the
Will dated 18.6.1974. The First Appellate Court on analysis
of the entire evidence clearly recorded cogent reasons
to conclude that the execution of the Will was
H
S.R. SRINAVASA AND ORS. v. S. 985
PADMAVATHAMMA
surrounded by suspicious circumstances. [Paras 31, 35, A
36] [1006-D; 1007-H; 1008-A-F]
Narayan Bhagwantrao Gosavi Ba/ajiwale v. Gopal
Vinayak Gosavi (1960) 1 SCR 773; Nagindas Ramdas v.
Da/patram lchharam (1974) 1 SCC 242; Gautam Sarup v. B
Leela Jetty (2008) 7 sec 85, relied on.
2.2. It was noticed by the First Appellate Court that
although 'P' was allotted certain specific property, there
was no recital in the Will as to which of the properties
were bequeathed to 'I'. Non-description of the schedule C
property creates a reasonable suspicion as to whether
'P' executed the Will. It was noticed that if she had the
intention of bequeathing all her property to 'I', she would
have mentioned the details of all the properties which
belonged to her in the Will. The First Appellate Court D
further held that no reason was given as to why the Will
was presented before the Sub Registrar on two separate
occasions for registration. Although the son of 'P' died
after having been divorced from his wife he is described
in the Will as a bachelor. No reason was stated in the Will E
as to why the other two daughters were excluded from
the property by 'P'. Since the suspicious circumstances
were not explained by defendant No.1, the Will was not
genuine. The First Appellate Court also noticed that
although 'I' was the sole beneficiary in the Will, she was F
present at the time when the Will was written. She was
also present in the office of Registrar when the Will was
presented for registration. This would clearly show that
'I' had an evil eye on the suit property and, therefore, the
descriptions of the other properties were not given. The G
active participation of 'I' in the writing and the registration
of the Will may well create a suspicion about its
genuineness. Since there were susp1c1ous
circumstances, it was necessary for the defendants to
H
986 SUPREME COURT REPORTS [2010] 4 S.C.R.
A explain the same. The registration of the Will by itself was
not sufficient to remove the suspicion. The first appellate
court also noticed that even in cases where the execution
of the Will-is admitted, at least one attesting witness of
the Will has to be examined to receive the Will in
s evitlence. DW2, who was examined was the scribe of the
Will, gave no plausible reasons as to why the Will was
presented twice before the Sub Registrar for registration.
Nor was it stated by this witness as to why the Will was
not registered on the first occasion. It was also held by
c the First Appellate Court that non-examination of the Sub
Registrar created suspicion about the genuineness of
the Will. Even the attesting witnesses to the Will were not
examined. There was no evidence whether the Will was
read over by the Sub Registrar or anybody else '( ~ore it
was registered. It was 1•·•1 ,, "'"•r>ad as to tiow the Will
0
came into possession of defendant No.1. There was no
evidence when he was put in proper custody of the Will.
Considering the cumulative effect of all the
circumstances, the First Appellate Court correctly held
E that execution of the Will was surrounded by suspicious
circumstances. [Paras 38-39] [1009-B-G; 1010-C-G]
Ramachandra v. Champabia AIR 1965 SC 357, relied
on.
F 3. The High Court in its judgment seemed to have
misread the entire evidence. The said findings recorded
by the First Appellate Court were brushed aside by
dubbing them as conjectural. The High court ought to
have taken great care to satisfy its judicial conscience
G that the execution of the Will was not surrounded by.
suspicious circumstances. It is a part of the initial onus
of the propounder to remove all reasonable doubts in the
matter. The presence of suspicious circumstances makes
initial onus heavier. Such suspicion cannot be removed
H
S.R SRINAVASA AND ORS. v. S. 987
PADMAVATHAMMA
by the mere assertion of the propounder that the Will A
bears signature. of the testator or that the testator was in
a sound and disposing state of mind at the time when the
Will was made. [Paras 40-42) (1011-A-C; 1012-0-E]
Case Law Reference:
B
AIR 1968 Gujarat 212 referred to Para 14
(2000) 6 sec 151 referred to Para 14
AIR 1970 SC 846 referred to Para 17
c
AIR 1977 SC 74 referred to Para 17
1992 Supp (3) sec 108 relied on Paras 14, 21
(2003) 6 sec 633 relied on Paras 14, 22
(1959) Supp 1 SCR 426 relied on Para 25 D
(1977) 1 sec 369 relied on Para 25
(1969) 1 sec 573 relied on . Para 26
(2001) 1· sec 503 relied on Paras 14, 27 E
(1960) 1 SCR 773 relied on Paras 16, 32
(1974) 1 sec 242 relied on Paras 16, 33
(2008) 1 sec 85 relied on Paras 16, 34
F
AIR 1965 SC 357 relied on Para 38
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4623 of 2005.
From the Judgment & Order dated 2.9.2003 of the High G
Court of Karnataka at Bangalore in R.S.A. No. 641 of 2003 .
.
~.N. Bhat for the Appellant.
Nand Kishore (for P.P. Singh) for the Respondent.
H
988 SUPREME COURT REPORTS [2010) 4 S.C.R.
A The Judgment of the Court was delivered by
SUF~INDER SINGH NIJJAR, J. 1.This appeal by special
leave has been filed by the legal heirs of the origin()I plaintiff,
Lalithamma. OS No.195 of 1986 had been filed by La_lithamma
in the Court of Civil Judge, Mysore which was subsequently re-
8
numbered as OS No.1434 of 1990 in the Court of Principal Civil
Judge, (.Junior Division), Mysore. The suit was for declaration
that the plaintiff and defendant No.4 are the absolute owners
of the suit schedule property and for possession thereof. The
suit was dismissed by the trial court. The appeal filed by the
C plaintiffs against the aforesaid judgment was allowed. The suit
filed by the plaintiffs was decreed as prayed. The High Court,
however, in regular second appeal filed by the respondent
herein, set aside the judgment of the first appellate court and
restored the judgment of the trial court, i.e. the suit filed by the
D plaintiffs-appellants was dismissed. In these circumstances, the
legal representatives of the original plaintiffs have filed the
present appeal by special leave in this Court.
2. Briefly stated the facts of the case are that the plaintiffs
E claimed that Puttathayamma was wife of Sivaramaiah who pre-
deceaseci her in 1950. Puttathayamma died on 15.11.1979.
She had four children. Lalithamma (daughter) who died in 1990,
was the original plaintiff. Subbaramaiah (son) who died
issuelesi; in 1973 and Smt. Kamalamma (daughter) also died
F issueles!i in 1998. She was impleaded as defendant No.4 in
this suit. Smt. lndiramma was the 4th child. She also died
issuelesB on 24.10.85. It is claimed that upon the death of
Subbaramaiah, Puttathayamma inherited the suit property and
became the absolute owner being class one heir of
G Subbaramaiah. Upon the death of Puttathayamma, the
deceasE!d plaintiff, defendant No.4, Kamalamma and
lndiramrna inherited her property. During her :ife time,
Puttathayamma was living with lndiramma. Upon her death,
lndiramrna continued to be in possession of the property. The
dispute about the property arose soon after the death of
ti lndiramma.
S.R. SRINAVASA AND ORS. v. S. 989
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
3. Since the original plaintiff - Lalithamma and defendant A
No.4 were residing outside, they did not come to know about
the death of their sister, lndiramma. Defendant No.1 claiming
to be close relative of deceased lndiramma organized and
performed her cremation ceremony. The house in which
lndiramma was residing i.e., schedule property contained a lot B
of movable properties such as gold and silver jewellery and
other articles which were of considerable vcilue. He took charge
of the house as well as the moveable properties by putting it
under lock and key. On learning about the death of their sister,
appellants and defendant No.4 came to Mysore: They c
demanded that defendant No.1 should hand over the
possession of the house and moveable properties. He,
however, refused to do so asserting that he was the absolute
owner of the entire property. Not only this, it is stated that
defendant No.1 had taken away several lacs of rupees which D
had been kept by lndiramma in various fixed deposits.
Defendant No.1 had declined to hand over the title deeds of
the schedule property as well as the bank deposit receipts.
4. The appellant and defendant No.4 also learnt that ttie
first defendant had taken heavy advances from defendants No.2 E
and 3 and put them in possession of different portions of the
schedule property as tenant. He had _!>een recovering heavy rent
from defendants No.2 and 3. During the pendency of the suit,
defendants No.2 and 3 vacated the suit schedule property.
Later, defendant no 5 was put in possession of the property. F
5. In the suit, it is made clear that appellant and the 4th
defendant will take separate action regarding the bank deposits
and other moveable properties in appropriate proceedings after
ascertaining the particulars thereof. It is clarified that the present G
suit was filed for declaration of the title to the property and for
possession as the first defendant has denied their title by
refusing to hand over the property to them.
6. We may also notice here that during the pendency of
H
990 SUPREME COURT REPORTS [2010] 4 S.C.R.
A the suit, defendant No.4 also passed away issueless. The
amended suit was, therefore, pursued by the L.Rs of deceased
Lalithamma.
7. In the written statement, it was claimed by the defendant
No.1 thal: Puttathayamma had executed a Will on 18.6.1974 in
8
favour of lndiramma. Cons~quently, there was no intestate
succession. Testamentary succession devolved on late
lndiramma. Therefore, neither the plaintiffs nor the 4th defendant
could succeed to the properties of Puttathayamma at all. During
C the life time of lndiramma.. her sister did not care to even look
after her. The moment she died, they have claimed to be heirs
of her estate. Defendant No.1, on the other hand, is the son of
Seetharnma, sister of Puttathayamma. He denied the entire
claim made by the plaintiffs. He further explained that he had
informed the plaintiff and defendant No.4 about the death of
D lndiramrna. Although the plaintiff turned up on the 5th day, the
4th defendant did not choose to come at all. Defendant No.1
further claimed to have carried out extensive repairs of the
house. It is also pleaded by defendant No.1 that lndiramma was
the secc1nd wife of one Chalapati Rao, who pre-deceased tier.
E Althoµgh Chalapati Rao did not beget any children with
lndiramrna, he died leaving four sons and two daughters from
his first wif~ According to the first defendant, the legal heirs of
Chalapati Rao would have preference over the appellants and
defendant No.4. Therefore, under any circumstances, no relief
F could be! granted to them.
8. In reply to the amended plaint, defendant No.1 stated
that an agreement of mortgage had been created in favour of
5th defondant in respect of the schedule property. Upon
G receiving Rs.1,00,000/-, defendant No.1 has put defendant
No.5 in possession.
9. \Nith these pleadings parties led their evidence. Upon
conside!ration of the entire material, the suit filed by the
H
S.R. SRINAVASA AND ORS. v. S. 991
PADMAVATHAMMA [SURINDER SINGH NIJJA~. J.]
appellants herein was dismissed by the Trial Court. A
· 10. The Trial Court notices that defendant No.1 is the son
of Seethamma, sister of Puttathayamma. It is also noticed that ·
lndiramma was the second wife of one Chelapathirao who had
six children from his previous marriage. lndiramma, however, 8
died issueless. The Will dated 18.6.1974 was produced by
defendant No.1, during evidence. The Trial Court observed that
the plaintiffs have not.seriously disputed the execution of the
Will by Puttathayamma in favour of lndiramma. Defendant No.1
had examined the scribe of the Will as DW2 to prove the Will. C
It has been held that the appellants in fact admitted the
execution of the Will in a subsequent suit being OS No.233 of
1998 which was filed by the appeilants herein as the legal heirs.
In view of the testamentary succession, lndiramma became the
absolute owner of the schedule property. Since husband of
lndiramma had pre-deceased her, the property would devolve D
upon his children under Section 15 (1) (b) of the Hindu
Succession Act, 1956 (hereinafter referred to as "the Act"). It
would not devolve on the appellants and defendant No.4 under
Section 15(2) of the Act. The Trial Court further notices the
claim made by the first defendant during trial that lndiramma E
had executed a Will in his favour dated 2.10.1984, bequeathing
the schedule property to him. The Trial Court further notices that
though defendant No.1 had got the Wil! dated 2.10.84 marked
as Exhibit, he had not chosen to examine any of the attesting
witnesses to the document. Defendant No.1 had earlier not F
instituted any proceedings to prov.e his title over the schedule
property pursuant to the alleged Will. Consequently, the claim
of defendant No.1 over the schedule property has also been
negatived. However, in view of the finding that appellants and
defendant No.4 cannot not inherit the property of G
Puttathayamma under Section 15 (2) of the Act, the suit has
been dismissed
11 .• The aforesaid judgment of the Trial Court was
challenged by the petitioners in appeal. The first appellate court H
992 SUPREME COURT HEPORTS [2010] 4 S.C.R.
A in a very elaborately written judgment recapitulated the
undisputed facts. It is noticed that Puttathayamma had four
children, namely, plaintiff, defendant No.4, Subbaramaiah (who
pre-deceased Puttathayamma) an~. lndiramma. lndiramma
was in po:ssession of the schedulefproperty. After the death of
B Puttathayamma, plaintiff and defehdant No.4 were residing in
their matrimonial homes away from Puttathayamma. Defendant
No.1 had cremated lndiramma. Appellant and defendant No.4
had not been present at the time of the cremation.
Subsequently, they demanded the possession of the house
c which the first defendant refused to hand over. The first
defendant claimed to have put 5th defendant in possession as
a
mortgagt~e. Therefore they filed the suit claiming title over the
property a1nd possession thereof. In the written statement
defendant No.1 claimed that entire movable and immovable
property had been bequeathed to lndiramma In a Will dated
0
18.6.1974. The first appellate court upon examination of the
entire evidt~nce accepts the submission made on behalf of the
petitioners. that the execution of the Will is shrouded by
suspiciou~·. circumstances. The first appellate court also
negatived tlhe submission made on behalf of the first defendant
E that the plaintiffs have admitted the execution of the Will in the
subsequent suit. Upon examination of the evidence, the first
appellate court had come to the conclusion that PW1 had not
admitted the genuineness of the Will anywhere. This witness I
had also stated that he had come to know about the Will of
F Puttathayarnma from the written statement filed by defendant
No.1. It is, therefore, held that there can be no presumption with
regard to thEl genuineness of the Will on the basis of the alleged
admission. Therefore the first appeal was allowed, judgment
and decree of the Trial Court wen:! set aside. The suit filed by
G the plaintiffs/appellants was decreed with costs declaring that
the legal representatives of the pl~intiffs are the owners of the
suit property and they are entitled for possession of the suit
schedule property.
H 12. Agg1rieved against this, defendant No.1 filed Regular
S.R. SRINAVASA AND ORS. v. S. 993
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
Second Appeal No.641 of 2003 in the High Court of Karnataka, A
Bangalore. The Hjgh Court allowed the Regular Second Appeal
and nonsuited the plaintiffs, with the following observations:-
"5. The contesting 1st defendant does not set up a rival
claim of title, but only disputes the title of the plaintiffs and 8
their right to seek possession. According to the 1st
defendant, Ex.D7 is the registered will executed by
Puttathayamma in favour of her daughter, lndiramma. As
argued by Shri T.N. Raghupathy, learned counsel for
respondents-appellants, I find that PW1-1 st plaintiff has C
unequivocally admitted in his evidence, about issuance of
legal notice prior to the filing of the suit and allegations are
made therein about execution of the will by Puttathayamma
in favour of lndiramma and also admits that she was
married to one Chalapati Rao who predeceased her and
through his first wife, had four children. Ex.D36 is the D
, certified copy of the plaint in OS 233/98 filed by the
plaintiffs herein. In the said suit, there is categorical
averment to the effect that Puttathayamma, during .her
lifetime, had executed the will, bequeathing her immovable
properties in favour of lndiramma. When execution of the E
will has become an admitted fact by the plaintiff, formal
proof of execution by examining the attestors would not be
necessary in law. Therefore, I am unable agree with Sri
Kashinath, learned counsel for the respondent that the will
is not prove. Further the finding of the appellate court that F
the will is shrouded with suspicious circumstances is based
on unwarranted surmises and contrai'y to the admissions
of the plaintiff. Accordingly, point no. (1) is answered in the
affirmative."
G
13. The High Court further holds that since the property had
been acquired by lndiramma through Will, Section 15(2) of the
Act would not be applicable. It is noticed that 'The provisions
of Section 15 (2) will apply only when the property is acquired
by a female by way of intestate succession, otherwise, the H
994 SUPREME COURT REPORTS [2010) 4 S.C.R.
A property would devolve as directed under sub-Section (1). May
be, the children of deceased husband of lndiramma being step
sons, ane not entitled to succes5ion under.sub-sec. (1) (a), but
however as heirs of th~ husband, under sub-sec .. (1) (b) of
Sec.15, they will be entitled to succeed to the estate. In that
B view of the matter, the claim of title of property by the plaintiffs
is untenable.· It is further held that since the children of the first
wife would be entitled to succeed to the estate, the appellants
(plaintiffs) have no right to see~ the relief of title by succession.
Consequently, the appeal was allowed .. The judgment and
c decree of the Appellate Court was set aside. The judgment and
decree of the Trial Court was confirmed. This judgment is
challenued before us in the present appeal.
14. Mr. Bhat, learned counsel for the appellants has
submitted that the judgment of the High Court is wholly
D erronecius in facts as well as in law. According to the learned
counsel, the first appellate court has rightly held that the
execution of the Will has not been proved. There is no
admission with regard to the execution or the genuineness of
the Will in the second suit. It was merely stated that a Will has
E been executed by Puttathayamma. The Will had to be proved
in accordance with the procedure laid down under Section 63
of tile Act and in accordance with Section 68 of the Indian
Evidence Act. The first appellate court, upon examination, of
the entire circumstances came to the conclusion that the Will
F is shrciuded by suspicious circumstances. The High Court,
without examining any of the real issues has brushed aside the
reasons given by. the first appellate court. According to the
learned counsel, the second suit had been filed by the
appellants herein only to prevent respondent No.1 from dealing
G with the movable properties of Puttathayamma. Even if the
execution of the Will is admitted, its genuineness had to be
established by respondent No.1. None of the attesting
witnesses were examined. The Sub Registrar was also not
examined. DW2, the scribe did not anywhere mention that he
H had attested the Will. Therefore, his examination as a witness
S.R. SRINAVASA AND ORS. v. S. 995
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
would not cure the defects·.. The High Cou'1 has also ignored A ·
the fact that lndiramma has·taken an active part in execution
of the Will. She was present when the Will was written. She was
also present before the Sub Registrar. According to th~ learned
counsel, the mother was not in a fit state of mind to have
executed the Will, shortly after the death of her only son. This a
fact has been totally ignored by the High Court. If she had been
the author of the Will, she would not have described her son
as a "bachelor" whereas in fact he was a "divorcee". According
to the learned counsel, the'Will is a manufactured document
created by defendant No.1 to exclude the appellants from c
succession. Learned counsel further submitted that since it was
a judgment of reversal, it was necessary for the High Court to
give cogent reasons to explain as to how the conclusions
reached by the first appellate court were not acceptable. The
High Court has reversed the judgment without giving any
0
reasons. In support of his submissions, learned counsel has
relied on the following judgments:-
( 1) Jayantilal Mansukhlal and another vs. Mehta
Chhanalal Amba/al, AIR 1968 Gujarat 212;
E
(2) State of Punjab vs. Ba/want Singh and others, 1992
Supp (3) Supreme Court Cases 108;
(3) V. Dandapani Chettiar vs. Balasubramanian Chettiar
(Dead) by L.Rs. and Others, (2003) & Supreme Court F
Cases 633;
(4) Palanive/ayutham Pillai and others vs.
Ramachandran and others, (2000) 6 Supreme Court
Cases 151; and
G
(5) K. Kama/am (dead) and another vs. Ayyasamy and
another, 2001 (7) Supreme Court Cases 503.
15. According to the learned counsel, the property would
be thus inherited by the appellants as Puttathayatnma died
H
996 SUPR:EME COURT REPORTS [2010) 4 S.C.R.
A intestate. He further submitted that even if the Will dated
18.6.1974 is accepted as valid, defendant No.1 cannot inherit
the property Gf lndiramma as she had died intestate. The Will
dated 2.10.8.:1, propounded by defendant No.1 to have been
made by lndiramma has not been proved. Therefore, again
B under Section 15 (2) of the Act, the property will revert back to
the plaintiffs/appellants. Learned counsel emphasized that
defendant No.1 has no locus standi to contest the title of th"e
appellants as he is a complete outsider for the family. Section
15 of the Act has been enacted to ensure that the property
C remains within the family. Therefore, this court has consistently
held against stranger in matters of succession.
16. Leamed counsel for the respondents, on the other
hand, submitted that the Will from Puttathayamma is proved.
There are no reasons to disbelieve a registered Will. The
D exclusion of the other daughters was because they were
married and well settled. Therefore, the property was given in
good faith to the unmarried lndiramma. Learned counsel further
submitted that if a respondent is a trespasser, equally the
appellants have not proved any better title. The first appellate
E court has wrongly stated that there is no explanation with regard
to the custody of the Will as it was given to respondent No.1
by lndiramrna. It is further submitted that the suspicious
circumstances pointed out by the appellants are only
conjectural. Therefore, the High Court has rightly disregarded
F the same. Genuineness of the Will cannot be disbelieved merely
because the Sub Registrar or the. scribe was not examined. It
was not mandatory to examine either the scribe or the Sub
Registrar. lndiramma's presence in the house at the time when
the Will was written is natural as she was living with
G Puttathayamma. The description of the son in the Will as
"bachelor" instead of "divorcee" would not be so material. The
testator only wanted to say that he was unmarried. The
appellants have failed to lead any evidence that Puttathayamma
was not in :a sound and disposing mind due to the death of her
H son. In fact it was only because her son had died that .she
S.R. SRINAVASA AND ORS. v. S. 997
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
bequeathed her property to lndiramma. Learned counsel further A
submitted that in view of the admission about the execution of
the Will made in the subsequent suit, it cannot possible by held
that the Will was not duly proved. According to the learned
counsel, admissions are the best form of evidence. Unless it
is effectively rebutted, the same can be relied upon. He relies B
on the following judgments:-
(1) Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
Vinayak Gosavi and others, AIR 1960 Supreme Court
100;
c
(2) Nagindas Ramdas v. Dalpatram lccharam alias
Brijram and others, AIR 1974 Supreme' Court 471; and
(3) Gautam Sarup vs. Leela Jetly and others, (2008) 7
SCC85. D
17. In reply, Mr. Bhat has submitted that there is no clear
admission in the subsequent suit which was only to prevent the
respondents to be away from the movable property. In any
event, admissions cannot be relied upon to dispense with proof
of the Will as required under law. He relies on the judgments E
in the cases of Somnath Berman v. Dr. S. P. Raju and another,
AIR 1970 Supreme Court 846 and Smt. Jaswant Kaur v. Smt.
Amrit Kaur and others, AIR 1977 Supreme Court 74.
18. We have considered the submissions made by the F
learned counsel for the parties. It is not disputed that
resp_ondent No.1 is a rank outsider. He is not a lineal
descendant of Puttathayamma. He is son of Puttathayamma's
sister Seethamma. This would become clear from the
genealogical graph of ttte family which is as under:- G
H
998 SUPHEMI: COURT REPORTS [2010] 4 S.C.R.
A Putta1thayamma Sivaramaia
{died in 15.11.1997) {died in 1950)
I I
r-
Smt. Lalithamrna Subbaramaiah Smt. Kamalamma Smt. lndiramma
B {died in 1990) {diea 1973) (died 1998) (died issueless
(original plaintiff) issueless issueless 24.10.1985
I (def.4) (husband
I Predeceased)
I
c I I I
S.R. Srinivasan B.S. Umadevi S.R. Venkat- S.R.V.
S.R. Rajarao Krishnaiah Subbarao
(plff.1) (plff.2: (plff.3) (plff.4)
(plff.5)
19. Cll::!arly if the Will dated 18.61974 is held not to be
0
genuine, th13 property would be inherited by the appellants under
Section 15 (2) of the Act. There is no dispute on this
proposition of law by either side. The only question that needs
determination in this case is as to whether the Will executed
by Puttath;:1yamma has been proved to be duly executed and
E the same was genuine.
20. The statutory provision regarding the rules of
succession in case of female Hindus as enacted in Section 15
of the Hindu Succession Act, 1956 is as follows:
F "15. General rules of succession in the case of female
Hindus.-(1) The property of a female Hindu dying
intestate shall devolve according to the rules set out in
Section 16,-
(a) firstly, upon the sons and the daughters (including the
G
chilclren of any predeceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
H
S.R. SRINAVASA AND ORS. v. S. 999
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
(d) fourthly, upon the heirs of the father; and A
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),--
(a) any property inherited by a female Hindu from her
father or mother shall devolve, in the absence of any son 8
or daughter of the deceased (including the children of any
predeceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified therein,
but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her
c
husband or from her father-in-law shall devolve, in the
absence of any·son or daughter of the deceased (including
the children of any predeceased son or daughter) not upon
the other heirs referred to in sub-section (1) in the order
0
specified therein, but upon the heirs of the husband."
21. A perusal of the aforesaid provisions would show that
the basic aim of Section 15(2) is to ensure that inherited property
of an issueless female Hindu dying intestate goes back to the
source It was enacted to prevent inherited property falling into E
the hands of strangers. This is also evident from the
recommendations of the Joint Committee of the Houses of
Parliament, which have been duly noticed.by this Court in the
case of State of Punjab v. Ba/want Singh, 1992 Supp (3) sec
108. The scheme underlying the introduction of the aforesaid "F
provision had been discussed as follows: •
"It came to be incorporated on the recommendations
of t!'";e Joint Committee of the two Houses of Parliament.
The reason given by the Joint Committee is found in clause
(17) of the Bill which reads as follows: G
"While revising the order of succession among the
heirs to a Hindu female, the Joint Committee have provided
that properties inherited by her from her father reverts to
the family of the father in the absence of issue and similarly H
1000 SUPREME COURT REPORTS [2010] 4 S.C.R.
A property inherited from her husband or father-in-law reverts
to the heirs of the husband in the absence of issue. In the
opinion of the Joint Committe~ such a provision would
prevent properties passing into the hands of persons to
whom .1ustice would demand they should not pass."
B 15. The report of the Joint Committee which was
accepted by Parliament indicates that sub-section (2) of
Section 15 was intended to revise the order of succession
amon!~ the heirs to a Hindu female and to prevent the
prope11ies from passing into the hands of persons to whom
c justicH would demand that they should not pass. That
means the property should go in the first instance to the
heirs of the husband or to the source from where it came."
22. This Court had occasion to consider the scheme of the
aforesaid Section in the case of V. Dandapani Chettiar v.
0
Ba/asubmmanian Chettiar,(2003) 6 SCC 633. The extent and
nature of the rights conferred by this section is expressed as
follows:-
"9. The above section propounds a definite and uniform
E schEime of succession to the property of a female Hindu
who dies intestate after the commencement of the Act. This
sec1rion groups the heirs of a female intestate into five
catogories described as Entries (a) to (e) and specified
in sub-section (1). Two exceptions, both of the same nature
F are engrafted by sub-section (2) on the otherwise uniform
order of succession prescribed by sub-section (1). The two
exceptions are that if the female dies without leaving any
issue, then ( 1) in respect of the property inherited by her
from her father or mother, that property will devolve not
according to the order laid down in the five Entries (a) to
G
(e), but upon the heirs of the father; and (2) in respect of
th1~ property inherited by her from her husband or father-
in-law, it will devolve not according to the order laid down
in the five Entries (a) to (e) of sub-section (1) but upon the
h1~irs of the husband. The two exceptions mentioned above
H
S.R. SRINAVASA AND ORS. v. S. 1001
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
are confined to the property "inherited" from the father, A
mother, husband and father-in-law of the female Hindu and
do not affect the property acquired by her by gift or by
device under a Will of any of them. The present Section
15 has to be read in conjunction with Section 16 which
evolves a new and uniform order of succession to her B
property and regulates the manner of its distribution. In
other words, the order of succession in case of property
inherited by her from her father or mother, its ,operation in
confined to the case of dying without leaving a son, a
daughter or children of any predeceased son or daughter." c
"10. Sub-section (2) of Section 15 carves out an exception
in case of a female dying intestate without leaving son,
daughter or children of a predeceased son or daughter.
In such a case, the rule prescribed is to find out the source
from which she has inherited the property. If it is inherited D
from her father or mother, it would devolve as prescribed
under Section 15(2)(a). If it is inherited by. her from her
husband or father-in-law, it would devolve upon the heirs
of her husband under Section 15(2)(b). The clause enacts
that in a case where the property is inherited by a female E
from her father or mother, it would devolve not upon the
other heirs, but upon the heirs of her father. This would
mean that if there is no son or daughter including the
children of any predeceased son or daughter, then the
property would devolve upon the heirs of her father. Result F
would be - if the property is inherited by a female from
her father or her mother, neither her husband nor his heirs
would get such property, but it would revert back to the
heirs of her father."
23. As noticed earlier by virtue of Section 15(2) (a) of the G
Act, the appellants would inherit the property in dispute. This
right is sought to be defeated by defendant No.1 on the basis
of the Will dated 18.6.1974, allegedly executed by
Puttathayamma. Defendant No.1 being the sole beneficiary
under the Will claims that the plaintiffs can not claim to 'inherit' H
1002 SUPREME COURT REPORTS [2010] 4 S.C.R.
A the property on the basis of intestate succession. Undoubtedly,
therefore, it was for defendant No.1 to prove that. the Will was
duly executed, and proved to be genuine.
24. The mode, the manner and the relevapt legal
provisions which govern the proof of Wills have been
8 elaborately dilated upon by thii:. Court in a number of cases.
We may make a reference only to some of these decisions.
25. In the case of H. Venkatacha/a Iyengar v. B.N.
Thimmajamma, [1959 Supp (1) SCR 426) Gajendragadkar J.
c stated the true legal position in the matter of proof of Wills. The
aforesaid statement-of law was further clarified by Chandrachud
J. in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC
369) as follows:
"1. Stated generally, a will has to be proved like any
D 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.
E 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 i 1as been called for the purpose
of proving its execution, if there be an attesting witness
F 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
G 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
H
S.R. SRINAVASAAND ORS .. v. S. 1003
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
proof of the essential facts which go into the making of the A
will.
4. Cases in which the execution of the will is
surrounded by suspicious circumstances stand on a
different footing. A shaky sigcature,, a feeble mind, an
unfair and unjust disposition of property, the propounder B
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 C
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 D
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 E
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. F
That test emph~sises 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 G
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 H
1004 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 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 initiai onus of the propounder to remove all
reasonable doubts in the matter."
B 26. Applying the aforesaid principles to this case, it would
become evident that the Will has not been duly proved. As
noticed earlier in this case, none of the attesting witnesses have
been examined. The scribe, who was examined as DW.2, has
not stated that he had signed the Will with the intention to attest.
C In his evidence, he has merely stated that he was the scribe of
the Will. He even admitted that he could not remember the
names of the witnesses to the Will. In such circumstances, the
observations made by this Court in the case of M.L. Abdul
Jabbar Sahib v. M. V. Venkata Sastri & Sons, [(1969) 1 SCC
D 573], become relevant. Considering the question as to whether
a scribe could also be an attesting witness, it is observed as
follows:
"It is essential that the witness should have put his signature
animo attestandi, that is, for the purpose of attesting that
E he has seen the executant sign or has received from him
a personal acknowledgment of his signature. If a person
puts his signature on the document for some other purpose,
e.g., to certify that he is a scribe or an identifier or a
registering officer, he is not an attesting witness."
F
27. In our opinion, the aforesaid test has not been satisfied
by DW.2 the scribe. The situation herein is rather similar to the
circumstances considered by this Court in the case of N.
Kama/am v. Ayyasamy, [(2001) 7 SCC 503]. Considering the
G effect of the signature of scribe on a Will, this Court observed
as follows:
"26.The effect of subscribing a signature on the part of the
scribe cannot in our view be identified to be of the same
status as that of the attesting witnesses."
H
S.R. SRINAVASA AND ORS. v. S. 1005
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
"The animus to attest, thus, is not available, so far as the A
scribe is concerned: he is not a witness to the will but a
mere writer of the will. The statutory requirement as noticed
above cannot thus be transposed in favour of the writer,
rather goes against the prcpounder since both the
witnesses are named therein with detailed address and B
no attempt has bee~ made to bring them or to produce
them before the court so as to satisfy the judicial
conscience. Presence of scribe and his signature
appearing on the document does not by itself be taken to
be the proof of due attestation unless the situation is so c
expressed in the document itself- this is again, however,
not the situation existing presently in the matter under
consideration."
28. The aforesaid observations are fully applicable in this
case. Admittedly, none of the attesting witnesses have been D
examined. Here signature of the scribe cannot be taken as
proof of attestation. Therefore, it becomes evident that the
execution of a Will can be held to have been proved when the
statutory requirements for proving the Will are satisfied. The
High Court has however held that proof of the Will was not E
necessary as the execution of the Will has been admitted in
the pleadings in O.S.No.233 of 1998, and in the evidence of
P.W.1.
29. The contention that the execution of the Will has beer.
admitted' by the appellants herein had been negated by the First F
Appellate Court in the following manner:
'"Nhat is admitted under EXD 36 i.e. plaint in O.S No: 233/
98 at Para 7 is only about the will and not the genuineness
of the will. During evidence of PW 1, it is elicited in the G
cross examination that he came to know about the will of
Puttathayamma as it was revealed jn the written statement
and that Puttathayamma might have written the will dated
4-7-74. But PW 1 has not admitted the genuineness of the
will anywhere ir. his evidence. Therefore the contention of H
1006 SUPREME COURT REPORTS [2010] 4 S.C.R.
A the learned Advocate for the first respondent that the
execution of the will is admitted and therefore its
genuineness is to be presumed cannot be accepted"
30. The aforesaid findings are borne out from the record
produced before us, which we have perused. There is no
8 admission about the genuineness or legality of the Will either
in the plaint of OS No.233 of 1998 or in the evidence of PW1.
The High court committed a serious error in setting aside the
well considered findings, which the first Appellate Court had
recorded upon correct analysis of the pleadings and the
C evidence.
31. It is undoubtedly correct that a true and clear admission
would provide the best proof of the facts admitted. It may prove
to be decisive unless successfully withdrawn or proved to be
erroneous. The legal position with regard to admissions and
0
their evidentiary value has been dilated upon by this Court in
many cases. We may notice some of them.
32. In the case of Narayan Bhagwantrao Gosavi
Balajiwale v. Gopal Vinayak Gosavi (1960) 1 SCR 773 it was
E observed as follows:
"A,1 admission is the best evidence that an opposing party
can rely upon, and though not conclusive, is decisive of the
matter, unless successfully withdrawn or proved
erroneous."
F
33. In the case of Nagindas Ramdas v. Da/patram
/chharam, (1974) 1 sec 242, it has been observed:
"Admissions,' if true and clear are by far the best
proof of the facts admitted. Admissions in pleadings or
G judicial admissions, admissible under Section 58 of the
Evidence Act, made by the parties or their agents at or
before the hearing of the case, stand on a higher footing
than evidentiary admissions. The former class of
admissions are fully binding on the party that makes them
H and constitute a waiver of proof. They by themselves can
S.R. SRINAVASA AND ORS. v. S. 1007
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
be made the foundation of the rights of the parties. On the A
other hand, evidentiary admissions which are receivable
at the trial as evidence, are by themselves, not conclusive.
They can be shown to be wrong."
34. The aforesaid two judgments along with some other .
8
earlier judgments of this Court were considered by this Court
in the case of Gautam Sarup v. Leela Jetty, (2008) 7 SCC 85
wherein it was observed as follows:
"16.A thing admitted in view of Section 58 of the Evidence
Act need not be proved. Order 8 Rule 5 of the Code of c
Civil Procedure provides that even a vague or evasive
denial may be treated to be an admission in which event
the court may pass a decree in favour of the plaintiff.
Felying on or on the basis thereof a suit, having regard to
the provisions of Order 12 Rule 6 of the Code of Civil
0
Procedure may also be decreed on admission. It is one
thing to say that without resiling from an admission, it would
be permissible to explain under what circumstances the
same had been made or it was made under a mistaken
belief or to clarify one's stand inter alia in regard to the E
extent or effect of such admission, but it is another thing
to say that a person can be permitted to totally resile
therefrom."
"28. What, therefore, emerges from the discussions made
hereinbefore is that a categorical admission cannot be F
resiled from but, in a given case, it may be explained or
clarified. Offering explanation in regard to an admission
or explaining away the same, however, would depend upon
the nature and character thereof. It may be that a defendant
is entitled to take an alternative plea. Such alternative G
pleas, however, cannot be mutually destructive of each
other."
35. Examined on the basis of the law stated above we are
unable to agree with the High Court that there was no need for
independent proof of the Will, in view of the admissions made H
1008 SUPREME COURT REPORTS [2010) 4 S.C.R.
A in OS No.233 of 1998 and the evidence of PW1. In fact there
is no admission except that Puttathayamma had executed a
Will bequeathing only the immovable properties belonging to
her in favour of lndiramma. The First Appellate Court, in our
opinion, correctly observed that the aforesaid admission is only
s about the making of the Will and not the genuineness of the Will.
Similarly, PW1 only stated that he had come to know ab0ut the
registration of the Will of his grandmother favouring lndiramma
through the written statement of the first defendant. The
aforesaid statement is followed by the following statements
c "Other than that I did not know about the Will. She was not
signing in English. I have not seen her signing in Kannada.
There was no reason for my grand mother to write a Will
favouring lndiramma." Even in the cross-examination he
reiterated that "I know about the will written by Puttathayamma
on 18.6.1974 bequeathing the properties to lndiramma only
0
through the written statement of the first defendant." In view of
the above we are of the opinion that the High Court committed
an error in setting aside the well-considered finding of the First
Appellate Court. The statements contained in the plaint as well
as in the evidence of PW1 would not amount to admissions with
E regard to the due execution and genuineness of the Will dated
18.6.1974.
36. In our opinion, the High Court also committed a serious
error by totally disregarding the suspicious circumstances
F surrounding the execution of the Will. The First Appellate Court
on analysis of the entire evidence had clearly recorded cogent
reasons to conclude that the execution of the Will is surrounded
by suspicious circumstances.
37. The First Appellate Court pointed out that the execution
G of the Will has not been proved as none of the attesting
witnesses have been examined. The scribe who was examined
as DW.2 nowhere stated that he had attested the Will. The
animus to attest was not evident from the document. In the Will,
D.W.2 had described himself as the scribe of the Will and
H signed as such. Therefore, in view of the ratio of law laid down
S.R. SRINAVASA AND ORS. v. S. 1009
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
in N. Kama/am (supra) the statutory requirement of attestation A
was cle<rly not satisfied.
38. The First Appe!late Court also observed that the Will
is not genuine, its execution being shrouded in suspicious
circumstances. It is noticed by the First Appellate Court that B
although Puttathayamma had been allotted certain specific
property, there is no recital in the Will as to which of the
properties had been bequeathed to lndiramma. It is further
noticed that son of Puttathayamma died on 27 .10. 73. She had,
therefore, inherited the property which had been allotted to the
share of the respondent. The Will does not describe the exact C·
property that may have been bequeathed by Puttathayamma
in favour of lndiramma. Non-description of the schedule
property creates a reasonable suspicion as to whether
Puttathayamma executed the Will Ex.07. It is noticed that if she
had the intention of bequeathing all her property to lndiramma, D
she would have mentioned the details of all the properties which
belonged to her in the Will. The First Appellate Court further-
holds that no reason has been given as to why the Will was
presented before the Sub Registrar on two separate occasions
for registration. Although the son of Puttathayamma died after E
having been divorced from his wife he is described in the Will
as a bachelor. No reason has been stated in the Will as to why
the other two daughters have been excluded from the property
by Puttathayamma. Since the suspicious circumstances have
not been explained by defendant No.1, the Will is not genuine. F
The First Appellate Court also notices that although lndiramma
is the sole beneficiary in the Will, she was present at the time
when the Will was written. She was also present in the office
of Registrar when the Will was presente.d for registration. This
would clearly show that lndiramma had an evil eye on the suit G
property and, therefore, the descriptions of the other properties
were. not given. The active participation of lndiramma in the
writing and the registration of the Will may well create a
suspicion about its genuineness. We may notice here the
observations made by this Court in the case of Ramachandra H
1010 SUPREME COURT REPORTS [2010] 4 S.C.R.
A v. Champabia [AIR 1965 SC 357]. This Court has held as
follows:
"This Court also pointed out that apart from suspicious
circumstances of this kind where it appears that the
propounder has taken a prominent part in the execution
B of the will which confers substantial benefits on him that
itself is generally treated as a suspicious circumstances
attending the execution of the will and the propounder is
required to remove the suspicion by clear and satisfactory
evidence. In other words, the propounder must satisfy the
c conscience of the court that the document upon which he
relies in the last will and testament of the testator."
39. Since there were suspicious circumstances, it was
necessary for the defendants to exi:>-lain .the same. The
D registration of the Will by itself was not sufficient to remove the
suspicion. The first appellate court also notices that even in
cases where the execution of the Will is admitted, at least one
attesting witness of the Will has to be examined to receive the
Will in evidence. DW2, who has been examined is the scribe
of the Will, has given no plausible reasons as to why the Will
E was presented twice before the Sub Registrar for registration.
Nor is it stated by this witness as to why the Will was not
registered on the first occasion. It is also held by the First
Appellate Court that non-examination of the Sub Registrar
creates suspicion about the genuineness of the Will. Even the
F attesting witnesses to the Will have not been examined. There
is no. evidence whether the Will was read over by the Sub
Registrar or anybody else before it was registered. It is not
explained as to how the Will came into possession of defendant
No.1. There is no evidence when he was put in proper custody
G of the Will. Considering the cumulative effect of all the
circumstances, the First Appellate Court has held that execution
of the Will is surrounded by suspicious circumstances.
Consequently, the appeal was allowed and the judgment of the
Trial Court was set aside.
!H
S.R. SRINAVASA AND ORS. v. S. 1011
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
40. The.High Court in its judgment seems to have misread A
the entire evidence. Aforesaid findings recorded by the First
Appellate Court have been brushed aside by dubbing them as
conjectural. We are unable to appreciate the course adopted
by the High Court. It was so influenced by the alleged admission
made by the plaintiffs in the second suit, it did not deem it B
appropriate to examine the material which formed the basis of
the findings recorded by the First Appellate Court. It appears
that the pleadings, documents and the evidence was not read
by the High Court yet it concluded that the findings of the
Appellate Court were conjectural. We are unable to endorse c
the view expressed by the High Court.
41. The High court ought to have taken great care to satisfy
its judicial conscience that the execution of the Will was not
surrounded by suspicious circumstances. The Appellate Court
had pointed out so many suspicious circumstances which could D
not have been brushed aside as being conjectural. The findings
were based on documentary evidence. It was necessary for the
defendant No.1 to answer a number of pertinent questions
relating to the execution of the Will.
42. It was also necessary for the High Court to exercise E
care and caution to ensure that the propounder of the Will has
removed all legitimate suspicion. We have earlier noticed that
in this case lndiramma was living with her mother
Puttathayamma at the time of her death. She was the sole
beneficiary under the Will dated 18.6.1974. Her sisters, the F
original plaintiff and defendant No.4 that is, Lalithamma and
Kamalamma had been excluded from the inheritance. There is
no convincing reason as to why they were excluded from the
inheritance. The Will merely mentions that these two ladies are
well settled in their lives whereas lndiramma was not married. G
The Will does not specify which of the properties has been
bequeathed to lndiramma, although Puttathayamma has been
allotted certain specific property. Puttathayamma's son had
died on 27.10.73 and the Will is stated to have been made on
18.6.1974. The Will is signed by lndiramma, even though she H
1012 SU PREM!: COURT REPORTS [2010] 4 S.C.R.
A is the sole beneficiary under the Will. She was present in the
office of the sub-Registrar at the time when the Will was
registered. There is also a question as to why the Will was
presented for registration on two different occasions. It appears
that on the date when the Will was executed lndiramma also
8 obtained a power of attorney from her mother which would
demonstrate her anxiety to come into possession c.. the
property immediately. Neither the scribe (DW2) nor DW1 were
able to give any satisfactory explanation as to why the Wili was
not registered on the first occasion. In such circumstances it
c was the duty of the of the High Court to carefully examine the
findings recorded by the lower Appellate Court together with
the relevant docum<=>nts on the record to ensure that there is a
proper explanation given by defendant No.1 of the aforesaid
suspicious circumstances. This Court in Iyengar case (supra)
had clearly held that cases in which the execution of the Will is
0
surrounded by suspicious circumstances, it may raise a doubt
as to whether the testator was acting of his own free will. In such
circumstances it is a part of the initial onus of the propounder
to remove all reasonable doubts in the matter. The presence
of suspicious circumstances makes initial onus heavier. Such
E suspicion cannot be r~moved by the mere assertion of the
propounder that the Will bears signature of the testator or that
the testator was in a sound and disposing state of mind at the
time when the Wilf was made.
F 43. In our opinion, the High Court failed to exercise proper
care and caution by not thoroughly examining the evidence led
by the party, especially when it was not in agreement with the
reasons recorded by the First Appellate Court. In the case of
Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 this Court
G reiterated the principles governing the proof of a Will which is
alleged to be surrounded by suspicious circumstances. Justice
Chandrachud speaking for the Court observed as follows:
"8. The defendant who is the principal legatee and for all
practical purposes the sole legatee under the will, is also
H the propounder of the will. It is he who set up the will in
S.R. SRINAVASA AND ORS. v. S. / 1013
PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]
answer to the plaintiff's claim in the suit for a one-half share A
in her tlusband's estate. Leaving aside the rules as to the
burden of proof which are peculiar to the proof of
testamentary instruments, the normal rule which governs
any legal proceeding is that the burden of proving a fact
in issue lies on him who asserts it, not on him who denies B
it. In other words, the burden lies on the party which would
fail in the suit if no evidence were led on the fact alleged
by him. Accordingly, the defendant ought to have led
satisfactory evidence to prove the due execution of the will
by his grandfather Sardar Gobinder Singh. c
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, is an adversary
proceeding becomes in such cases a matter of the court's
conscience and then the true question which arises for D
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
which sets up the will offers a cogent and convincing E
explanation of the suspicious circumstances surrounding
the making of the will."
44. In our opinion, the High Court failed to examine the
entire issue in accordance with the aforesaid principles laid
down by this Court. We are, therefore, unable to uphold the F
impugned judgment. The appeal is allowed. Judgment of the
High court is set aside and the judgment of the First Appellate
Court i.e. the Court of the Principal Civil Judge (Senior Division)
at Mysore is restored.
~
D.G. Appeal allowed.
[2010) 4 S.C.R. 1014
A N. SURESH NATHAN & ORS., ETC. ETC.
V.
UNION OF INDIA & ORS. ETC. ETC.
(Civil Appeal No. 8468 of 2003)
APRIL 22, 2010
B
[J.M. PANCHAL AND A.K. PATNAIK, JJ.]
Assistant Engineers (Including Deputy Director of Public
Works Department) Group B(Technical) Recruitment Rules,
c 1965:
rr. 5 and 11(1) - Promotion to post of Assistant Engineer
under 50% quota for degree-holder category of Section
Officers/Junior Engineers - HELD: Clause (1) of Rule 11
0 does not provide for a separate stream or channel of
promotion exclusively for degree-holders, who have
completed three years service - In view of r.5, post of
Assistant Engineer being a selection post, merit is the sole
criteria and seniority in the grade of Section Officers/Junior
Engineers is not at all relevant - Therefore, all the Section
E Officers/Junior Engineers who are eligible for consideration
under Rule 11 (1) would be considered on the basis of
comparative merit - Constitution of India, 1950 - Articles 16
and 141 - Code of Civil Procedure, 1908 - s. 11.
F Constitution of India, 1950:
Article 141 - Law declared by Supreme Court to be
binding on all courts - Decision of Supreme Court in N.
Suresh Nathan's case - HELD: Was confined to the
G eligibility for consideration for promotion to 50% vacancies for
the posts of Assistant Engineers/Public Works Department,
Pondicherry meant for degree-holder or equivalent in the
grade of Section Officer/Junior Engineer, and there was no law
declared by the Court, to be binding under Article 141, on the
H 1014
~ N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1015
OF INDIA & ORS. ETC. ETC.
issue as to how Section Officers/Junior Engineers who become A
qualified for promotion to the post of Assistant Engineers would
be considered for promotion - Nor would the said decision
constitute res judicata on the issue - Precedents - Code of
Civil Procedure, 1908 - s. 11 - Assistant Engineers (Including
Deputy Director of Public Works Department) Group B
B(Technica/) Recruitment Rules, 1965 - rr. 5 and 11 (1 ).
Promotion of appellant nos. 1 to 7 to the posts of
Assistant Engineers, Public Works Department was
challenged by respondent nos. 2 to 7, before the Central
Administrative Tribunal. The Tribunal dismissed the C
application holding that in view of the decision of the
Supreme Court in N. Suresh Nathan's' case, with regard
to the procedure to be adopted for promotion of Section
Officers/Junior Engineers, the applicants before it could
not be allowed to raise the point once again nor was it D
open to the Tribunal to hold otherwise. But, the writ
petition filed by the respondents challenging the order of
the Tribunal was allowed by the High Court holding inter
alia that the judgment of the Supreme Court in N. Suresh
Nathan did not operate as res judicata. A review DPC was E
directed to be held.
Disposing of the appeals, the Court
HELD: 1. In N. Suresh Nathan & Ors.*, this Court
confined its decision to the qualification or eligibility for F
consideration for promotion to 50% vacancies for the
post of Assistant Engineer meant for degree-holders or
equivalent in the grade of Section Officer/Junior Engineer
and held that only those Section Officers/Junior
Engineers, who had completed three years' service after G
obtaining degree, were qualified or eligible for
consideration to the 50% vacancies meant for the
category of degree-holders or equivalent. In the said
1. (1991) 2 Suppl. SCR 423. H
1016 SUPREME COURT REPORTS [2010] 4 S.C.R.
A judgment, this Court did not decide on how the Section
Officers/Junior Engineers who had completed three
years' service in the grade after the degree in Civil
Engineering or equivalent and had the qualification or
eligibility for consideration for promotion to the 50%
B vacancies meant for the category of degree-holders
wo·Jld be considered for promotion. Therefore, in N.
Su.·esh Nathan & Ors., there was no law declared by this
Court so as to be binding on the courts under Article 141
of the Constitution, on the issue as to how Section
c Officers/Junior Engineers, who become quaPfied or
eligible for promotion to the post of Assistant Engineer
would be considered for promotion; and, therefore, the
decision in N. Suresh Nathan would also not constitute res
judicata on the said issue. [Para 13-15] [1027-F-H; 1028-
D A-C-E; 1029-A-B]
*N. Suresh Nathan & Ors. v. Union of India & Ors. (1991)
2 Suppl. SCR 423 = (1992) 1 Suppl. SCC 584 - explained
and distinguished.
E 2.1. Clause (1) of Rule 11 is only a provision laying
down the qualification or eligibility for promotion to 50%
of the posts of Assistant Engineers and the qualification
or eligibility provided therein is either three years service
in the grade of Section Officer/Junior Engineer after
F degree in Civil Engineering or equivalent, or six years
service in the grade of Section Officer/Junior Engineer
with diploma in Civil Engineering. The provision also has
a rider that if there are Section Officers/Junior Engineers.
who have put in three years service after acquiring
G degree or equivalent, available for consideration for
vacancies, then they will be considered first for promotion
and the turn for consideration for promotion of diploma-
holders in Civil Engineering with six years service in the
grade of Section Officer/Junior Engineer will come only
thereafter. Thus, the Rule itself provides that if for
H
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1017
OF INDIA & ORS. ETC. ETC.
vacancies in the posts of Assistant Engineers, Section A
Officers/Junior Engineers possessing a recognized
degree in Civil Engineering or equivalent with three
years' service in the grade are not available, then Section
Officers/Junior Engineers holding diploma in Civil
Engineering with six years' service in the grade would be B
eligible for promotion. It cannot, therefore, be accepted
that Clause (1) of Rule 11 provides for a separate stream
or channel of promotion exclusively for degree-holders,
who have completed three years service. [para 23] [1033-
E-H; 1034-A-C] C
2.2. Rule 5 of the Recruitment Rules states that the
post of Assistant Engineer in the Public Works
Department is a selection post. The Recruitment Rules,
however, do not lay down that seniority-cum-merit would
be the criteria for promotion to the selection post of D
Assistant Engineer. The person, who is most meritorious,
is the most suitable person to be promoted to the
selection post. Thus, merit is the sole criteria for
prom'otion to the selection post and, therefore, question
of seniority in the grade of Section Officer/Junior E
Engineer is not at all relevant for promotion to the post
of Assistant Engineer. [Para 29-30] [1036-E-F-G; 1037-E-
F]
Dr. Jai Narain Misra v. State of Bihar & Ors. (1971) 1 F
SCC 30; and Guman Singh, etc. v. State of Rajasthan & Ors.
(1971) 2 sec 452, relied on.
R. B. Desai & Anr. v. S. K. Khanolkar & Ors. (1999) 7
SCC 54; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. 2004
(2) SCR 330 = (2004) 3 SCC 734; Shailendra Dania & Ors. G
v. S. P. Dubey & Ors. 2007 (5) SCR 190 = (2007) 5 SCC 535;
and M.B. Joshi v. Satish Kumar Pandey 1993 Supp.(2) SCC
419, referred to.
Suman Gupta v. State of J & K (1983) 4 SCC 339; H
1018 SUPREME COURT REPORTS [2010) 4 S.C.R.
A Munidra Kumar v. Rajiv Govi/ (1991) 3 SCC 368; Satya
Narain Shukla v. U.0.1. (2006) 9 SCC 69; P.U. Joshi v.
Accountant General (2003) 2 SCC 632; U. 0.1. v. Pushpa Rani
(2008) 9 SCC 242; lnderjeet Khurana v. State of Haryana
(2007) 3 sec 102; u.0.1. v. A.K. Naruta (2007) 11 sec 10;
B and A. K. Raghumani Singh & Ors. v. Gopal Chandra Nath
& Ors. (2000) 2) SCR 943 = (2000) 4 SCC 30, cited.
2.3. In the absence of any indication in the
Recruitment Rules that seniority in the grade of Section
Officer/Junior Engineer will be counted for the purpose
C of promotion to the post of Assistant Engineer,
consideration of all Section Officers/Junior Engineers
under Clause (1) of Rule 11 of the Recruitment Rules who
are eligible for such consideration has to be done on the
basis of assessment of the comparative merit of the
D eligible candidates and the most suitable or meritorious
candidate has to be selected for the post of Assistant
Engineer. Such a method of selection will be consistent
with Rule 5 of the Recruitment Rules and Article 16 of the
Constitution which guarantees to all citizens eqµality of
E opportunity in matters of public employment. [Par.a 34)
[1040-F-H; 1041-A]
2.4. In the considered opinion of the Court, therefore,
the practice adopted by the Government on the advice
F of the UPSC of counting the service of the eligible
candidates from the date of acquisition of the degree in
Civil Engineering by them and the judgment and order of
the High Court directing that the entire service of eligible
candidates, both prior and after acquisition of the degree
G of Civil Engineering by them, would be counted for the
purpose of promotion to the post of Assistant Engineer
under Clause (1) of Rule 11 of the Recruitment Rules are
contrary to the fundamental right guaranteed under
Article 16 of the Constitution and r. 5 of the Recruitment
Rules which are made under Article 309 of the
H Constitution. [Para 34) [1041-8-C]
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1019
OF INDIA & ORS. ETC. ETC.
3. The judgment of the High Court is set aside and A
the Government of Pondicherry is directed to consider,
in accordance with merit, the cases of all Section Officers/
Junior Engineers, who have completed three years'
service in the grade of Section Officers/Junior Engineers.
It is made clear that the promotions to the posts of 8
Assistant Engineers already made pursuant to the
judgment and order of the High Court will not be
disturbed until the exercise is carried out for promotion
in accordance with merit as directed in this judgment and
on completion of such exercise, formal orders of C
promotion to the vacancies in the posts of Assistant
Engineers which arose during the pendency of the cases
before this Court are passed in case of those who are
selected for promotion and, after such exercise only,
those who are not selected for promotion may be
reverted to the post of Section Officer/Junior Engineer. D·
[para 35] [1041-D-G]
Case Law Reference:
(1991) 2 Suppl. SCR 423 distinguished . para 7 .
E
(1999) 1 sec 54 referred to · para 8
(2000) 2) SCR 943 cited para 8
2004 (2) SCR 330 referred to para 18
2007 (5) SCR 190 referred to para 19 F
(1971) 1 sec 30 relied on para 29
(1971) 2 sec 452 relied on para 30
(1983) 4 sec 339 cited para 31
G
(1991) 3. sec 368 cited para 31
(2006) 9 sec 69 cited para 31
(2003) 2 sec 632 cited para 31
H
1020 SUPREME COURT REPORTS [2010) 4 S.C.R.
A (2008) 9 sec 242 cited para 31
(2001) 3 sec 102 cited para 31
(2007) 11 sec 10 cited para 31
1993 Supp. (2) sec 419 referred to para 32
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8468 of 2003.
From the Judgment & Order dated 23.6.2003 of the High
Court of Judicature at Madras in Writ Petition No. 11236 of
c 2000.
WITH
C.A. Nos. 698 of 2004, 3649-3650 of 2010 & 8470 of 2003.
0 J.L. Gupta, L.N. Rao, M.S. Ganesh, V.G. Kanagaraj,
Rakesh Dwivedi, K.V. Viswanathan, Satya Mitra Garg, S.
Thananjayan, G. Balaji (for Mis. Mahalakshmi Balaji & Co.) S.R.
Setia, V.G. Pragasam, S.J. Aristotle, P. Ramasubramanian,
M.A. Chinnasamy, K. Krishna Kumar, Neha Sharma, S.
E Krishna, Preetika Dwivedi, Mukti Chaudhary, Amit Singh,
Abhishek Kaushik, P .B. Subramaian for the appearing parties.
The Judgment of the Court was delivered by
A.K. PATNAIK, J.1. Leave granted in S.L.P. (C) Nos.
7174-7175 of 2009.
2. These ate appeals against the judgment and order
dated 23.06.2003 passed by a· Division Bench of the Madras
High Court in Writ Petition No.11236 of 2000.
J
3. The relevant facts briefly are that the Government of
G Pondicherry, Planning & Development Department, made the
Assistant Engineers (inclu(:ling Deputy Director of Public Works
Department) Group 'B' (Technical) Recruitment Rules, 1965 [for
short 'the Recruitment Rules'] for the post of Assistant
Engineers for the Public Works Department initially by a
H
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1021
OF INDIA & ORS. ETC. ETC. [AK. PATNAIK, J.]
Notification dated 31.01.1966. The Recruitment Rules were A
amended by a Notification dated 08.08.1986 and as per the
amended Recruitment Rules the post of Assistant Engineer in
the Public Works Department, Pondicherry, was a selection
post and appointment to the 20% of the posts of Assistant
Engineer was to be by direct recruitment and to the 80% of the B
posts by promotion. 50% of the promotion quota was to be filled
up by Section Officers (now Junior Engineers) possessing a
recognized degree in Civil Engineering or equivalent with three
years service in the grade, failing which Section Officers holding
diploma in Civil Engineering with six years service in the grade c
and the remaining 50% of the promotion quota was to be filled·
up by Section Officers (Junior Engineers) possessing a
recognized diploma in Civil Engineering with six years service
in the grade.
4. On 24.09.1968, the Chief Secretary, Governm~nt of D
Pondicherry, wrote to the Secretacy, Union Public Service
Commission (for short 'the UPSC') thaflhere were Section
Officers with diploma qualification who have acquired degree
in Civil Engineering or equivalent and have putting in several
years in service and having become qualified for consideration E
for 50% quota of the post of Assistant Engineers to be filled
up by promotion and questions have arisen whether the service
rendered by such Section Officers before and after possessing
the degree or equivalent can be taken into account for
consideration for promotion under the degree holders quota F
and whether their cases may be considered under the diploma ·
holders quota as well for promotion to the post of Assistant
Engineer. In the letter dated 24.09.1968, the Chief Secretary
sought the advice of the Commission regarding the correct
procedure to be followed in such cases. The UPSC gave its G
advice in its letter dated 06.12.1968 that the services of Section
Officers, who qualify as graduates while in service, should be
counted from the date they passed the degree or equivalent
examination or from the date they started drawing Rs.225/- p.m.
in the prescribed scale, whichever was earlier and Section H
1022 SUPREME COURT REPORTS [2010] 4 S.C.R.
A Officers may continue to be considered in the diploma holders
quota in case it is advantageous to them and the Government
followed this advice of the UPSC.
5. In 1989, however, some Junior Engineers, who were
formerly Section Officers working in the Public Works and Local
8
Administration Department of Government of Pondicherry, filed
O.A. No. 552 of 1989 in the Central Administrative Tribunal,
Madras Bench, (for short 'the Tribunal') and in its judgment and
order dated 09.01.1990 the Tribunal held that when the
C Recruitment Rules require three years service in grade, the
Section Officers (now Junior Engineers) who ceased to be
mere diploma holders having acquired the degree qualification
have to be regarded as having total experience put in the grade
of Section Officers before and after acquiring the degree
qualification and there was nothing in the Recruitment Rules to
D warrant the exclusion of a part of the experience acquired by
such Junior Engineers while functioning in the grade of Section
Officers (Junior Engineers). The Tribunal accordingly directed
that the cases of the applicants in the O.A. be considered for
promotion to the post of Assistant Engineers on par with other
E degree holders Junior Engineers taking due note of their total
length of service rendered in the grade of Junior Engineers and
such a consideration should be along side other Junior
Engineers, who might have acquired the necessary degree
qualification earlier than the applicants while holding the post·
F of Junior Engineers.
6. The judgment and order dated 09.01.1990 of the
Tribunal was challenged by N. Suresh Nathan and Others before
this Court in Civil Appeal No. 4542 of 1991 and this Court
G interpreting Rule 11 of the Recruitment Rules held in the
judgment reported in 1992 Supp. (1) SCC 584 that the period
of three years' service in the grade required for degree-holders
as qualification for promotion in the category of degree-holders
must mean three years' service in the grade as a degree-holder
H and, therefore, that period of three years can commence only
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1023
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
from the date of obtaining the degree and not earlier and this A
interpretation of ~ule 11 was in conformity With the past
practice followed consistently by the Government and that the
Tribunal was not justified in taking the contrary view and
accordingly allowed the appeal. Review Petition No.50 of 1993
was filed against the judgment and order dated 22.11.1991 of 8
this Court in the aforesaid case but the same was dismissed
on 31.01.1993.
7. Thereafter, appellant Nos. 1 to 7 were promoted to the
post of Assistant Engineer on 08.03.1997. Respondent Nos.
2 to 7 challenged the promotion of the appellant Nos. 1 to 7 C
before the Tribunal in O.A. No. 359 of 1997 contending inter
,. alia that this Court in its judgment in N. Suresh Nathan & Ors.
v. Union of India & Ors. (supra) has only held that three years'
service required for eligibility for the promotion quota reserved
for the category of degree-holders or equivalent should be D
considered from the date of acquiring the degree or equivalent,
but has not decided the question of seniority as between
degree-holders or equivalent and diploma-holders in the grade.
The Gov~rnment of Pondicherry in its reply filed in 0. A. No.359
of 1997 before the Tribunal contended that the Departmental E
Promotion Committee met on 29.09.1996 and keeping in view
the direction of this Court in the judgment in N. Suresh Nathan
& Ors. v. Union of India & Ors. (supra) selected the Section
Officers/Junior Engineers to the post of Assistant Engineers by
preparing two lists, one list for considering promotions to the F
post of Assistant Engineer for the degree-holders quota and
another list for considering promotion to the post of Assistant
Engineers for the diploma-holders quota. The Government of
Pondicherry further clarified in its reply that in the first list those
who had joined as Section Officers/Junior Engineers witb G
degree in Civil Engineering were placed above the Section
Officers/Junior Engineers who had joined the service with
diploma in Civil Engineering but had subsequently acquired
degree in Civil Engineering and in the second list, the Section
Officers/Junior Engineers who had joined with diploma ·were H
1024 SUPREME CvURT REPORTS [2010] 4 S.C.R.
A placed in order of seniority counted from the date of the joining
in the grade. By the judgment and order dated 27.08.1999, the
Tribunal dismissed O.A. No.359of1997 after holding that this
Court has already taken a specific view in N. Suresh Nathan's
case (supra) with regard to the procedure to be adopted for
B promotion of Junior Engineers in the Public Works Department
of Pondicherry construing the recruitment rules and the
applicants in O.A. should not be allowed to raise the point once
again and that the judgment of this Court in N. Suresh Nathan's
case was binding on the Tribunal and it was not open for the
C Tribunal to hold otherwise insofar as the interpretation of the
recruitment rules for the post of Assistant Engineer in the Public
Works Department in Pondicherry is concerned.
8. Aggrieved, respondents Nos.3, 4, 5 and 6 filed Writ
Petition No.11236 of 2000 before the Madras High Court
D against the judgment and order dated 27.08.1999 of the
Tribunal in O.A. No.359of1997 and by the impugned judgment
and order, a Division Bench of the Madras High Court held
inter alia that in N. Suresh Nathan & Ors. v. Union of India &
Ors. (supra) this Court only decided the question of eligibility
E for promotion to the posts of Assistant Engineer meant for the
category of degree-holders or equivalent, but did not decide
the question of seniority of Section Officers/Junior Engineers,
who had acquired a degree in Civil Engineering or equivalent
after joining as Section Officers/Junior Engineers and,
F therefore, the judgment of this Court in N. Suresh Nathan &
Ors. (supra) did not operate as res judicata. The Division
Bench of the Madras High Court, relying on the decisions of
this Court in R. B. Desai & Anr. v. S. K. Khano/kar & Ors.
[(1999) 7 SCC 54) and A. K. Raghumani Singh & Ors. v. Gopal
G Chandra Nath & Ors. [(2000) 4 SCC 30), further held in the
impugned judgment and order that the entire service of a
person concerned even before acquiring the degree in Civil
Engineering or equivalent have to be counted for the purpose
of seniority and promotion and directed that a review DPC
H should be held to consider the question of promotion of the
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1025
. OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
petitioners before the High Court vis-a-vis respondents 2 to 8 A
and other eligible persons, who had become eligible by the date
of sitting of the DPC in 1996 and accordingly allowed the Writ
Petition.
9. Mr. Jawahar Lal Gupta, Mr. L. Nageswar Rao and Mr. B
M.N. Rao, learned senior counsel appearing for the appellants,
submitted that the view taken by the High Court in the impugned
judgment and order is the same as has been taken by the
Tribunal in its order dated 09.01.1990 in the earlier O.A. No.552
of 1989 and as the order dated 09.01.1990 of the Tribunal in C
O.A. No.552 of 1989 has been set aside by this Court in N.
Suresh Nathan & Ors. (supra), the impugned judgment and
order of the High Court cannot be sustained. They referred to
the earlier order dated 09.01.1990 of the Tribunal in O.A.
No.552 of 1989 to show that the Tribunal had directed the
authorities to consider the applicants in the O.A. for promotion D
to the post of Assistant Engineer at par with other degree-
holder Junior'Engineers taking due note of their total length of
service rendered in the grade of Junior Engineer, both before
and after acquiring the degree of Civil Engineering or
equivalent, and submitted that this Court set aside this direction E
of the Tribunal in the judgment in N. Suresh Nathan & Ors.
(supra). They further submitted that once this Court set aside
the order dated 09.01.1990 of the Tribunal in O.A. No.552 of
1989 on the ground that the order of the Tribunal was norln
conformity with Rule 11 of the Recruitment Rules and the F
practice followed by the Department, the decision of this Court
on the issue constitutes res judicata and the interpretation of
Rule 11 of the Recruitment Rules by this Court was a
declaration of law binding on the High Court under Article 141
of the Constitution. G
10. Mr. M.S. Ganesh, learned senior counsel appearing
for the Government of Pondicherry, reiterated these contentions
of the learned counsel for the appellants.
11. Mr. Rakesh Dwivedi and Mr. K.V. Viswanathan, H
1026 SUPREME COURT REPORTS [2010) 4 S.C.R.
A learned counsel appearing for respondents No. 2 to 19, in their
reply, contended that the High Court has rightly held in the
impugned judgment and order that in N. Suresh Nathan & Ors
(supra), this Court only decided the question of eligibility of
Section Officers or Junior Engineers for promotion to the post
B of Assistant Engineers meant for the category of degree-
holders and not the method in which the eligible candidates will
be consid6red for promotion.
12. Para 5 of the judgment in N. Suresh Nathan & Ors.
C (supra) which contains the ratio decided by this Court is quoted
herein below:
"5. The Recruitment Rules for the post of Assistant
Engineers in the PWD (Annexure C) are at pages 57 to
59 of the paper book. Rule 7 lays down the qualifications
D for direct recruitment from the two sources, namely,
degree-holders and diploma-holders with three years'
professional experience. In other words, a degree is
equated to diploma with three years' professional
experience. Rule 11 provides for recruitment by promotion
E from the grade of Section Officers now called Junior
Engineers. There are two categories provided therein -
one is of degree-holder Junior Engineers with three years'
· service in the grade and the other is of diploma-holder
Junior Engineers with six years' service in the grade, the
F provision being for 50 per cent from each category. This
matches with Rule 7 wherein a degree is equated with
diploma with three years' professional experience. In the
first category meant for degree-holders, it is also provided
that if degree-holders with three years' service in the grade
are not available in sufficient number, then diploma-holders
G
with six years' service in the grade may be considered in
the category of degree-holders also for the 50 per cent
vacancies meant for them. The entire scheme, therefore,
does indicate that the period of three years' service in the
grade required for degree-holders according to Rule 11
H
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1027
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
as the qualification for promotion in that category must A
mean three years' service in the grade as a degree-holder
and, therefore, that period of three years can commence
only from the date of obtaining the degree and not earlier.
The service in the grade as a diploma-holder prior to
obtaining the degree cannot be counted as service in the B
grade with a degree for the purpose of three years' service
as a degree-holder. The only question before us is of the·
construction of the provision and not of the validity thereof
and, therefore, we are only required to construe the
meaning of the provision. In our opinion, the contention of c
the appellants degree-holders that the rules must ·be
construed to mean that the three years' service in the
grade of a degree-holder for the purpose of Rule 11 is
three years from the date of obtaining the degree is quite
tenable and commends to us being in conformity with the
0
past practice followed consistently. It has also been so
understood by all concerned till the raising of the present
controversy recently by the respondents. The tribunal was,
therefore, not justified in taking the contrary view and
unsettling the settled practice in the department."
E
13. On a close reading of the aforesaid para 5 of the
judgment of this Court in N. Suresh Nathan & Ors. (supra), we
find that this Court confined its decision to the qualification or
eligibility for consideration for promotion to 50% vacancies for
the post of Assistant Engineer meant for degree-holders or F
equivalent in the grade of Section Officers/Junior Engineers and
held that only those Sections Officers or Junior Engineers, who
had completed three years' service after obtaining degree, were
qualified or eligible for consideration to the 50% vacancies
meant for the category of degree-holders or equivalent. In the G
judgment in N. Suresh Nathan & Ors. (supra), this Court did not
decide on how the Section Officers/Junior Engineers who had
completed three years' service in the grade after the degree
in Civil Engineering or equivalent and had the qualification or
eligibility for consideration for promotion to the 50% vacancies H
1028 SUPREME COURT REPORTS [2010] 4 S.C.R.
A meant for the category of degree-holders would be considered
for promotion.
14. Article 141 of the Constitution states that the law
declared by this Court shall be binding on all the courts within
the territory of India. In N. Suresh Nathan & Ors. (supra) this
8
Court has set aside the order of the Tribunal dated 09.01.1990
in O.A. No.552 of 1989 after declaring that Section Officers/
Junior Engineers having three years' service in the grade after
they acquired degree in Civil Engineering or equivalent will
C become qualified or eligible for promotion to the 50%
vacancies meant for the category of degree-holders or
equivalent. In N. Suresh Nathan & Ors. (supra) this Court has
not declared any law on how these Sections Officers/Junior
Engineers, who had become qualified or eligible for promotion
to the post of Assistant Engineer under the category of degree-
D holders or equivalent, would be considered for such promotion.
There was, therefore, no law declared by this Court on how
Section Officers or Junior Engineers, who become qualified or
eligible for promotion to the post of Assistant Engineer would
be considered for promotion, which was binding on the courts
E under Article 141 of the Constitution.
15. Section 11 of the Code of Civil Procedure Code (for
short 'CPC') titled Res judicata' states that no court shall try
any issue which was directly or substantially in issue between
F the same parties and which has been heard and finally decided
by a competent court. Thus, unless an issue directly and
substantially raised in the former case is heard and decided
by the competent court, the principle of res judicata will not be
attracted. In N. Suresh Nathan & Ors. (supra) this Court, while
G settjng aside the order dated 09.01.1990 in O.A. No.552 of
1989, has decided that those Section Officers/Junior Engineers
who complete three years' service after acquiring the degree
in Civil Engineering or equivalent are qualified or eligible for
consideration for promotion to the 50% quota of vacancies for
H the post of Assistant Engineer under the degree-holders
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1029
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
category but has not decided how such Section Officers/Junior A
Engineers who are qualified or eligible will be considered for
such promotion under the degree-holders category. The
decision of this Court in N. Suresh Nathan & Ors. (supra),
therefore, did not constitute res judicata on the issue regarding
the manner in which Section Officers/Junior Engineers who B
were qualified or eligible for consideration for promotion to the
post of Assistant Engineer would be considered for promotion.
16. The High Court was, therefore, right in taking the view
that in N. Suresh Nathan & Ors. (supra), this Court was
concerned only with the question of eligibility but was not C
concerned whether the past services rendered by the diploma-
holders would be counted for the purpose of seniority and that
neither Article 141 of the Constitution nor the principle of res
judicata was a bar for Tribunal or the High Court to consider
whether past services of Section Officers/Junior Engineers who D
were diploma-holders before they acquired degree in Civil
Engineering or equivalent could be counted for the purpose of
promotion for the 50% vacancies for the post of Assistant
Engineers meant for the category of degree-holders or
equivalent. E
17. Learned counsel for the appellants next submitted that
Rule 11 of the Recruitment Rules provides for two streams or
channels of promotion to the post of Assistant Engineer, Public
Works Department, one stream or channel is for Sections F
Officers or Junior Engineers possessing a recognized degree
in Civil Engineering or equivalent and the other for Section
Officers/Junior Engineers holding diploma in Civil Engineering.
They submitted that it is for this reason that the UPSC in its
letter dated 06.12.1968 advised the Government that the G
services of Section Officers/Junior Engineers, who qualify as
graduates while in service, should be counted from the date
they passed the degree or equivalent while considering them
for promotion for the channel or stream of promotion meant for
Section Officers or Junior Engineers having degree in Civil
H
1030 SUPREME COURT REPORTS [2010) 4 S.C.R.
A Engineering or equivalent and the Government of Pondicherry
has acted on this advice of the UPSe.
18. Mr. Nageswar Rao cited the decision in Chandravathi
P. K. & Ors. v. C.K. Saji & Ors. [(2004) 3 sec 734) in which
the question for consideration was whether in terms of th.e
8
scheme of the Kerala Engineering Service (General Branc;h)
Rules, diploma-holders were entitled to claim any weightage
for the service rendered by them prior to their acquisition of
degree qualification in the matter of promotion or transfer to
C higher posts when specific quota is fixed for graduates and
diploma-holders in the matter of promotion and this Court, on
a conjoint reading of Rules 4 and 5 of the Kerala Engineering
Service (General Branch) Rules, held that a diploma-holder
Assistant Engineer who subsequently acquired a degree
qualification would be eligible for promotion as Assistant
D Executive Engineer, only in the event he fulfils the conditions
precedent therefor and not otherwise and his case could be
considered only after the cases of promotion of those who had
been holding such degree qualification have been considered.
E 19. Mr. Ganesh adopted these arguments of learned
counsel for the appellants and cited the decision in Shailendra
Dania & Ors. v. S. P. Dubey & Ors. [(2007) 5 sec 535)
wherein this Court interpreting the rules for promotion to the
post of Assistant Engineers in CPWD, which has adopted by
F the DOA, found that 25% of the total posts of Assistant
Engineers were to be filled up by promotion from the category
of graduate Junior Engineers and 25% of the total posts were
to be filled up by diploma-holders with eight years' service and
held that a separate quota was, thus, prescribed for promotion
G of Junior Engineers for degree and diploma-holders to the
higher post of Assistant Engineer. He submitted that in the
aforesaid case of Shailendra Dania & Ors. (supra), this Court
emphatically held that the service experience required for
promotion from the post of Junior Engineer to the post of
Assistant Engineer in the limited quota of degree-holder Junior
H
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1031
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
Engineers in the service experience of a degree-holder and A
cannot be equated with the service rendered as a diploma-
holder. Relying on this decision, learned counsel for the
Government of Pondicherry submitted that the prior service
experience of a Section Officer or Junior Engineer while he was
diploma-holder and when he had not acquired the degree in B
Civil Engineering or equivalent cannot be counted for the
purpose of consideration for the 50% quota of promotion to the
post of Assistant Engineer meant for degree-holders.
20. Learned counsel appearing for the respondents 2 to
19, on the other hand, submitted that Rule 11 of the Recruitment C
Rules does not provide for two streams or channels of
promotion as contended by learned counsel for the appellants
and it only lays down the qualification or eligibility of three years'
service after degree in Civil Engineering or equivalent as a
qualification or eligibility and once a diploma-holder acquires D
a degree in Civil Engineering or equivalent, his entire length of
service both prior to acquisition of such degree in Civil
Engineering or equivalent and after acquisition of such degree
or equivalent has to be taken into consideration at the time of
consideration for promotion to the post of Assistant Engineer E
meant for degree-holders.
21. Mr. Viswanathan cited this Court's decision in R. B.
Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54] for
proposition that if at the time of consideration for prpmotion, F
the candidates concerned have acquired eligibility, then unless
a rule specifically gives an advantage to a candidate with earlier
eligibility, the date of seniority should prevail over the date of
eligibility. He submitted that in the present case, the rules for
promotion from the post of Section Officer or Junior Engineer G
to Assistant Engineer did not give any such priority to the
candidates acquiring earlier eligibility. He submitted that
Chandrava~hi P. K. & Ors. v. C.K. Saji & Ors. (supra) was a
case where the rules, namely, the Kerala Engineering Service
(General Branch) Rules, were different from the Recruitment H
1032 SUPREME COURT REPORTS [2010] 4 S.C.R.
A Rules in the present case and the Kerala Engineering Service
(General Branch) Rules clearly provided for two different
streams or channels of promotion for the posts of Assistant
Engineer, i.e. for diploma-holders and degree-holders. He
submitted that in Shailendra Dania & Ors. v. S. P. Dubey &
B Ors. (supra) cited by the learned counsel for the appellants and
the Government of Pondicherry, the question for consideration
was whether a diploma-holder Junior Engineer, who obtained
a degree while in service, became eligible for promotion to the
post of Assistant Engineer on completion of three years of
c service after he obtained the Engineering degree or on
completion of three years of service prior to obtaining the
degree in Engineering and while answering this question, this
Court held that a diploma-holder Junior Engineer became
eligible for promotion to the post of Assistant Engineer on
completion of three years' service after he obtained the
0
Engineering degree. He submitted that the decision of this
Court in Shai/endra Dania & Ors. (supra), therefore, is not an
authority for proposition that the service of diploma-holders put
in prior to the acquisition of the degree or equivalent by him
will have to be ignored while considering them for promotion
E to the post of Assistant Engineer meant for degree holders.
22. Rule 11 of the Recruitment Rules in the present case
is quoted herein below :-
F "11. In case of recruitment Promotion
by promotion/deputation/ 1. Section Officer
Transfer grades from which possessing a recognized
promotion/deputation/ degree in Civil
transfer to be made. Engineering or Equivalent
with 3 Years service in
G
the grade failing which
Section Officers holding
diploma in Civil
Engineering with 6 years
service in the grade -
H 50%.
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1033
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
2.Section Officers A
possessing a recognized
diploma in Civil
Engineering with 6 years
service in the grade -
50%" B
23. A plain reading of Rule 11 of the Recruitment Rules
quoted above would make it clear that for the 50% quota for
the posts of Assistant Engineer mentioned under Clause 1 of
Rule 11, Section Officers (now Junior Engineers) possessing C
recognized degree in Civil Engineering or equivalent with three
years' service in the grade, failing which Section Officers
possessing diploma in Civil Engineering with six years' service
in the grade would be eligible for consideration for promotion.
All that the Rule provides is that if for vacancy in the post of
Assistant Engineer, Section Officers possessing recognized D
degree in Civil Engineering or equivalent with three years'
service in the grade are not available, Section Officers holding
diploma in Civil Engineering with six years service in the grade
could be considered for promotion. Clause 1 of Rule 11 is,
therefore, only a provision laying down the qualification or E
eligibility for promotion to 50% of the posts of Assistant
Engineer and the qualification or eligibility provided therein is
either three years service in the grade of Section Officers or
Junior Engineers after degree in Civil Engineering or equivalent
or six. years service in the grade of Section Officers or Junior F·
Engineers with diploma in Civil Engineering. This provision also
has a rider that if there are Section Officers/Junior Engineers,
who have put in three ,years service after acquiring degree or
equivalent, available for consideration for vacancies, then they
will be considered first for promotion and the turn for G
consideration for promotion of diploma-holders in Civil
Engineering with six years service in the grade of Section
Officers/Junior Engineers will come only thereafter. Thus, the
Rule itself provides that if for vacancies in the post of Assistant
Engineer, Section Officers possessing a recognized degree in H
1034 SUPREME COURT REPORTS [2010] 4 S.C.R.
A Civil Engineering or equivalent with three years' service in the
grade are not available, then Section Officers holding diploma
in Civil Engineering with six years' service in the grade would
be eligible for promotion. We, therefore, cannot accept the
submission of learned counsel for the appellants and the
B Government of Pondicherry that Clause 1 of Rule 11 provides
for a separate stream or channel of promotion exclusively for
degree-holders, who have completed three years service and
we are of the opinion that learned counsel for the respondents
2 to 19 are right in the submission that Clause 1 of Rule 11
c only lays down the qualification or eligibility for consideration
for promotion to 50% of the posts of Assistant Engineers.
24. In Chandravathi P. K. & Ors. v. C.K. Saji & Ors.
(supra), cited by Mr. L. Nageshwara Rao, on the other hand,
this Court held that under Rules 4 and 5 of the Kerala
D Engineering Service (General Branch) Rules there were
separate avenues of promotion for the degree-holders and the
diploma holders. This will be clear from the observations of the
Court in para 30 of the judgment in Chandravathi P. K. ,& Ors.
v. C.K. Saji & Ors. (supra), quoted herein below:
E
"A bare perusal of Rules 4 and 5 of the Kerala Engineering
Service (General Branch) Rules would clearly go to show
that the avenues for promotion for the degree-holders and
the diploma holders were separate ....... " [(2004) 3 sec
F 734 at 748]
25. In Shailendra Dania & Ors. v. S. P. Dubey & Ors.
(Supra) cited by learned counsel Mr. Ganesh, this Court
similarly found that there were two different channels or streams
of promotion for degree-holders and diploma holders to the
G post of Assistant Engineer in the relevant rules. This will be
clear from the findings in para 44 of the judgment quoted herein
below:
"...... There is watertight compartment for graduate Junior
H Engineers and diploma-holder Junior Engineers. They are
N. SU RESH NATHAN & ORS., ETC. ETC. v. UNION 1035
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
entitled for promotion in their respective quotas. Neither a A
diploma-holder Junior Engineer could claim promotion in
the quota of degree-holders because he has completed
three years of service nor can a degree-holder Junior
Engineer make any claim· for promotion quota fixed for
diploma-holder Junior Engineers. [(2007) 5 SCC 533 at B
560)1"
26. In the present case, on the other hand, Clause 1 of Rule
11 of the Recruitment Rules does not provide for "separate
avenues" or ''watertight compartments" for promotion to the post . C
of Assistant Engineers fqr degree-holders and diploma-
holders. As we have seen Clause 1 Rule 11 of the Recruitment
Rules only lays down the qualification or eligibility for
considerai.Jn for promotion to the post of Assistant Engineers
earmarked for the 50% quota. The two decisions of this Court
in Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra) and D
Shai/endra Dania & Ors. v. S. P. Dubey & Ors. (Supra) are,
therefore, of no assistance to the appellants.
27. In R. B. Desai & Anr. v. S. K. Khano/kar & Ors. (supra)
cited by Mr. Viswanathan, this Court found that the amended E
rules of 1988 pertaining to the promotion to the cadre of
Assistant Conservator of Forests provided that Range Forest
Officers with five years regular service in the grade and
possessing diploma of Forest Rangers' Training from Forest
Rangers College in India or equivalent were eligible for F
promotion to the post of Assistant Conservator of Forests and
the Court held in para 9:
"............. that if at the time of consideration for promotion
the candidates concerned have acquired the eligibility, then
unless the rule specifically gives an advantage to a G
candidate with earlier eligibility, the date of seniority should
prevail over the date of eligibility. The rule under
consideration does not give any such priority to the
candidates acquiring earlier eligibility and, in our opinion,
rightly so. In service law, seniority has its own weightage H
1036 SUPREME COURT REPORTS [2010] 4 S.C.R.
A and unless and until the rules specifically exclude this
weightage of seniority, it is not open to the authorities to
ignore the same. [(1999) 7 sec 54 at 58)
28. In the passage of the judgment of this Court in R.8.
B Desai & Anr. V. S. K. Khanolkar & Or5. (supra) quoted above,
it is laid down that in service law, seniority has its own
weightage and unless and until the rules specifically exclude this
seniority, it is not open to the authorities to ignore the ..;ame. In
the aforesaid case though the post of ACF was mentioned to
be a selection post in the amended rules of 1988, the question
C whether for a selection post seniority would have weightage or
merit would have weightage while considering the eligible
candidates for promotion was not raised or decided and the
only question which was raised before this Court was whether
ranking assigned in the eligibility list or the ranking assigned
D to the seniority list should be given weightage and this Court
held that between the candidates who are eligible, ranking in
seniority must be given weightage irrespective of the date for
which the candidate becomes eligible.
E 29. In the present case, we find that Rule 5 of the
Recruitment Rules states that the post of Assistant Engineer
in the Public Works Department, Pondicherry, is a selection
post. The Recruitment Rules, however, do not lay down that
seniority-cum-merit would be the criteria for promotion to the
F selection post of Assistant Engineer. In Dr. Jai Narain Misra
v. State of Bihar & Ors. [(1971) 1 SCC 30) a three-Judge
Bench of this Court held that the question of seniority was not
relevant for promotion to the selection post in the language of
the judgment of this Court in Dr. Jai Narain Misra v. State of
G Bihar & Ors. (supra):
'
"It was not disputed before us that the post of Director of
Agriculture is a selectjon post. Therefore, the question of
seniority was not relevant in making the selection. It is for
theState Government to select such officer as it considers
as most suitable. In this view we think the High Court was
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1037
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
not justified in going into the question of seniority nor will A
we be justified in going into that question."
Thus, the question of seniority in the grade of Section Officers
or Junior Engineers is not at all relevant for promotion to the
post of Assistant Engineer in the Public Works Department,
8
Government of Pondicherry. The practice adopted by the
Government of Pondicherry in consultation with the UPSC of
counting the services of Section Officers or Junior Engineers,
who qualified as graduates while in service from the date they
passed the degree or equivalent examination and placing them C
in order of seniority accordingly for the purpose of consideration
for promotion to the post of Assistant Engineer under Clause
1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of
the Recruitment Rules. Similarly, the direction of the High Court
in the impugned judgment and order to count the entire service
of a person concerned even befo(e acquiring degree in Civil D
Engineering for the purpose of seniority and promotion to the
post of Assistant Engineer under Clause 1 of Rule 11 of the
Recruitment Rules is contrary to Rule 5 of the Recruitment
Rules.
E
30. The person, who is most meritorious, is the most
suitable person to be promoted for the selection post. Merit, in
other words, is the sole criteria for promotion to the selection
post. In Guman Singh, etc.· v. State of Rajasthan & Ors. [1971
(2) SCC 452] a five-Judge Bench of this Court speaking F
through Vaidialingam, J. explained how merit of candidates for
promotion is to be assessed in para 35 at page 408 of the
judgment in the following words:
" ........... No doubt the term 'merit' is not capable of an
easy definition, but it can be safely said that merit is a sum G
total of various qualities and attributes of an employee such
as his academic qualifications, his distinction in the
University, his character, integrity, devotion to duty and the
manner in which he discharges his official duties. Allied
to this may be various other matters or factors such as his H
1038 SUPREME COURT REPORTS [2010] 4 S.C.R.
A punctuality in work, quality and outturn of work done by him
and the manner of his dealings with his superiors and
subordinate officers and the general public and his rank
in the service. We are only indicating some of the broad
aspects that may be taken into account in assessing the
B merits of an officer. In this connection it may be stated that
the various particulars in the annual confidential repois of
an officer, if carefully and properly noted, will also ~ive a
very broad and general indication regarding the merit of
an officer."
C Where, therefore, there are large number of eligible candidates
available for consideration for promotion to a selection post,
the Government car 1 issue executive instructions consistent with
the principle of merit on the method to be followed for
considering such eligible candidates for promotion to the
D selection post.
31. Learned counsel for the appellants however submitted
that when the Recruitment Rules are silent on the procedure to
be adopted by the Government in selecting the candidates for
E promotion, the Government is the best authority to decide what
procedure to be adopted in such promotion· and the Court will
not interfere with the procedure so adopted unless it was
unconstitutional, arbitrary, unreasonable or otherwise illegal. In
support of this submission, Mr. L. Nageswar Rao cited the
F decisions of this Court in Suman Gupta v. State of J & K
[(1983) 4 SCC 339], Munidra Kumar v. Rajiv Govil [(1991) 3
SCC 368], Satya Narain Shukla v. U.0.1. [(2006) 9 SCC 69],
P.U. Joshi v. Accountant General [(2003) 2 SCC 632], U.0.1.
v. Pushpa Rani [(2008) 9 SCC 242], lnderjeet Khurana v.
G State of Haryana [(2007) 3 SCC 102] and U.0.1. v. A.K. Narula
[(2007) 11 sec 1O]. Learned counsel for the appellants
submitted that in the present case the Government of
Pondicherry in consultation with the UPSC has adopted the
procedure since 1968 that the services of Section Officers/
Junior Engineers who qualified as graduates while in service
H
..
N. SU RESH NATHAN & ORS., ETC. ETC. v. UNION 1039
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
should be counted from the date they passed the degree or A
equivalent examination for the promotion under clause 1 Rule
11 of the Recruitment Rules and this procedure is not
unconstitutional, arbitrary, unreasonable or illegal and,
therefore, the High Court by the impugned judgment and order
should not have interfered with this procedure and should not B
have directed that the entire service of a person concerned
even before acquiring the degree in civil engineering or
equivalent has to be counted for the purpose of seniority and
promotion to the post of Assistant Engineer under clause 1 of
Rule 11 of the Recruitment Rules. Learned counsel appearing c
for the Government of Pondicherry adopted this contention of
the learned counsel of the appellants.
32. Learned counsel for the respondents No.2 to 19, in
their reply, submitted that the Government cannot adopt a
procedure for selection by way of promotion to the post of D
Assistant Engineer contrary to trye Recruitment Rules. They
submitted that the Recruitment Rules do not provide that for
promotion under clause 1 of Rule 11, the services of Section
Officers/Junior Engineers who qualified as graduates while in
service, would be counted from the date they passed the E
degree or equivalent examination and their services prior to the
date of passing the degree or equivalent examination would be
ignored. They further submitted that the Government also cannot
adopt the procedure of selection which violates the fundamental
right guaranteed under Article 16 of the Constitution of India to F
equality of opportunity in matters of public employment. They
submitted that once a candidate became eligible or qualified
to be considered for promotion to the post of Assistant
Engineer under clause 1 of Rule 11 of the Recruitment Rules,
he has a right to be considered for such promotion and such G
consideration cannot be denied by laying down a procedure
which ignores his seniority in the grade of Section Officer/Junior
Engineer. They relied on the decision of this Court in M.B. Joshi
v. Satish Kumar Pandey [1993 Supp.(2) SCC 419].
H
1040 SUPREME COURT REPORTS [2010] 4 S.C.R.
A 33. In M.B. Joshi v. Satish Kumar Pandey (supra), the
State Government had been applying the principle of counting
the seniority of Graduate Sub-Engineers from the date of their
continuous officiation irrespective of the date on which such
diploma-holder Sub-Engineer acquired the degree of
B graduation in Engineering and on the basis of such seniority,
the Departmental Promotion Committee was considering
Graduate Sub-Engineers for promotion to the post of Assistant
Engineers. When this method adopted by the State
Government was challenged by some of the Sub-Engineers
c before the Madhya Pradesh Administrative Tribunal, Jabalpur,
the Tribunal held that the seniority of such Sub-Engineers must
be determined from the date of acquiring the degree of
graduation in Engineering and this Court held that the Tribunal
was wrong in determining the seniority from the date of
acquiring degree of Engineering and it ought to have been
0
determined on the basis of length of service on the post of Sub-
Engineer and the Government was right in doing so and there
was no infirmity in the orders passed by the Government. In this
case also, the question did not arise whether for selection post
E seniority would have weightage or merit would have weightage
while considering the eligible candidates for promotion.
34. As we have seen, Rule 5 of the Recruitment Rules in
the present case states that the post of Assistant Engineer is
a selection post and the Recruitment Rules no where provide
F that seniority-cum-merit would be the criteria for promotion. In
the absence of any indication in the Recruitment Rules that
seniority in the grade of Section Officers I Junior Engineers will
be counted for the purpose of promotions to the post of
Assistant Engineer, consideration of all Section Officers I Junior
G Engineers under Clause 1 of Rule 11 of the Recruitment Rules
who are eligible for such consideration has to be done on the
basis of assessment of the comparative merit of the eligible
candidates and the most suitable or meritorious candidate has
to be selected for the post of Assistant Engineer. Such a
H method of selection will be consistent with Rule 5 of the
N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1041
OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]
Recruitment Rules and Article 16 of the Constitution which A
guarantees to all citizens equality of opportunity in matters of
public employment. In our considered opinion, therefore, the
· practice adopted by the Government of Pondicherry on the
advice of the UPSC of counting the service of the eligible
candidates from the· date of acquisition of the degree in Civil B
Engineering by them and the impugned judgment and order of
the High Court directing that the entire service of eligible
candidates, both prior and after acquisition of the degree of
Civil Engineering by them, would be counted for the purpose
of promotion to the post of Assistant Engineer under Clause 1 c
of Rule 11 of the Recruitment Rules are contrary to the rules
made under Article 309 of the Constitution and the fundamental
right guaranteed under Article 16 of the Constitution.
35. For the aforesaid reasons, we set aside the impugned
judgment of the High Court and direct the Government of D
Pondicherry to consider the cases of all Section Officers or
Junior Engineers, who have completed three years' service in
the grade of Section Officers or Junior Engineers, for promotion
to the vacancies in the post of Assistant Engineer, Public Works
Department, Government of Pondicherry, in accordance with E
their merit. We make it clear that the promotions to the post of
Assistant Engineers already made pursuant to the judgment
and order of the High Court will not be disturbed until the
exercise is carried out for promotion in accordance with merit
as directed in this judgment and on completion of such F
exercise, formal orders of promotion to the vacancies in the
posts of Assistant Engineer which arose during the pendency
of the. cases before this Court are passed in case of those who
are selected for promotion and after su.:h exercise only those
who are not selected for promotion may be reverted to the post G
of Section Officer or Junior Engineer.
The appeals are disposed of accordingly w;th no order as
to costs.
R.P. Appeals disposed of. H
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