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SUPREME COURT OF INDIA
BEFORE N.P. SINGH AND FAIZAN UDDIN, JJ.
KASHIBAI w/o LACHIRAM AND ANOTHER
Versus
PARWATIBAI w/o LACHIRAM AND OTHERS
Civil Appeal No. 9100 of 1995{From the Judgment and Order dated 5-2-1992 of the Bombay High Court in S.A. No. 682 of 1981}
Decided on 25-9-1995
Advocates appeared:
A.M. Khanwilkar, Advocate, for the Appellants;
Dr Rajeev B. Masodkar and K.L. Taneja, Advocates, for the Respondents.
Evidence Act, 1872 - Section 68 - Indian Succession Act, 1925 - Section 63 - Clause (c) of Section 63 - Transfer of Property Act, 1882 - Section 3 - Code of Civil Procedure, 1908 - Sub-section (1) of Section 100 - Sub-section (4) of Section 100 - Will - Ownership - Possession Of Suit Properties - Plaintiffs brought this suit for separate possession by partition of a double-storey house, open plot and some agricultural lands as described in plaint, situated at Village - Plaintiffs claimed half share in suit properties being legal heirs of deceased Lachiram - It was alleged by plaintiffs that Lachiram during his lifetime had given Surveys Nos. 171/1, 160 and 159/3 to Plaintiff 1 towards her maintenance in addition to a portion of suit house and placed Plaintiff 1 in possession thereof and she became full owner of said land - It was alleged by plaintiffs that deceased Lachiram during his lifetime challenged plaintiffs ownership in respect of Surveys Nos. 171/1, 160 and 159/3 by filing Civil Suit – Held, Lachiram executed Will in his presence, that he signed Will being part of execution of testament and this evidence in its correct background would go to show that what was required under Section 63 has been carried out in execution of Will - With respect to High Court court may say that these findings of High Court are clearly based on assumptions and surmises and, totally against weight of evidence on record - Trial court on a close and thorough analysis of entire evidence came to a proper conclusion that Will has not been proved in accordance with law which finding has been further affirmed by lower appellate court after an independent reappraisal of entire evidence with which court find ourselves in agreement as there was hardly any scope or a valid reason for High Court to interfere with - High Court seems to have ignored these provisions and proposed to depreciate evidence and interfere with findings of fact without even formulating any question of law - It has been consistent view of this Court that there is no jurisdiction to entertain a second appeal on ground of erroneous finding of fact, based on appreciation of relevant evidence – Judgment and decree passed by High Court are set aside and that of trial court is restored - Appeal Allowed.
In the judgment, the will was not proved solely by the attesting witnesses. The trial court analyzed the evidence of the witnesses to determine whether the execution of the will was properly established according to legal requirements. It was found that none of the witnesses, except Sheikh Nabi, deposed that Lachiram had signed the will in their presence, and even Sheikh Nabi did not confirm that Lachiram signed the will before him. The court emphasized that for a will to be properly proved, it must be attested in accordance with the law, which requires that at least one attesting witness must testify to the execution, including observing the testator sign or acknowledge the signature, and that the attestation must be proven in court (!) .
The court highlighted that the evidence did not establish that Lachiram signed the will in the presence of the attesting witnesses or that proper attestation as required by law was carried out. Therefore, the parameters used to verify the will included the legal requirements of attestation and execution, which were not satisfied in this case. The court underscored that the law mandates specific proof of execution, and assumptions or broad inferences without direct evidence of signing in the presence of witnesses are insufficient to establish the validity of the will (!) (!) .
In summary, the will was not proved merely through the witnesses' testimony; instead, the court required and found that proper attestation and proof of execution, as prescribed by law, were absent in this case.
JUDGMENT
FAIZAN UDDIN, J.- Leave granted.
2. This appeal at the instance of the plaintiffs has been directed against the judgment and decree dated 5-2-1992 passed by the High Court of Bombay in Second Appeal No. 682 of 1981 reversing the judgment and decree of the two courts below passed in favour of the plaintiffs-appellants herein. The appellants herein shall be described as plaintiffs and the respondents as defendants hereinafter for the sake of convenience.
3. The following family tree will indicate the inter se relationship of the parties to the suit out of which the present appeal arises.
Lachiram (dead)
Kashi Bai (first wife) Plaintiff/ Appellant 1
Parvati Bai (second wife) Defendant/Respondent 1
Sunita Bai (daughter from Kashi Bai) Plaintiff/Appellant 2
Meena Bai (daughter from Parvati Bai) Defendant/Respondent 2 Purshottam (son of Meena Bai) Defendant/Respondent 3
4. As would be clear from the family tree Plaintiff 1 and Defendant 1 are the two widows of deceased Lachiram while Plaintiff 2 is the daughter of Lachiram from his first wife, Kashi Bai and Defendant 2 Meena Bai is his daughter from his second wife, Parvati Bai. Defendant 3, Purshottam is the son of Defendant 2, Meena and grandson of late Lachiram. The plaintiffs brought this suit for separate possession by partition of a double-storey house, open plot and some agricultural lands as described in the plaint, situated at Village Eklara, Taluka Mukhed. The plaintiffs claimed half share in the suit properties being the legal heirs of deceased Lachiram. It was alleged by the plaintiffs that Lachiram during his lifetime had given Surveys Nos. 171/1, 160 and 159/3 to Plaintiff 1 towards her maintenance in addition to a portion of suit house and placed Plaintiff 1 in possession thereof and she became full owner of the said land after the Hindu Succession Act, 1956 came into force. It was alleged by the plaintiffs that deceased Lachiram during his lifetime challenged the plaintiffs ownership in respect of Surveys Nos. 171/1, 160 and 159/3 by filing Civil Suit No. 138 of 1969 which was dismissed on 28-12-1970. The said judgment was confirmed in first and second appeals and thus the plaintiffs became the absolute owners of the same.
5. Further case of the plaintiffs was that during the lifetime of Lachiram Surveys Nos. 111/2 and 129/7 were purchased by Lachiram in the name of Defendant 1 and that Survey No. 128/A was received by Defendant 1 during the pendency of the suit as a result of a decision of pending suit between deceased Lachiram and one Naga and, therefore, the same were also liable to partition and the plaintiffs were entitled to half share by partition in the said lands also. It was averred by the plaintiffs that the defendants were requested for separate possession by partition to the extent of their half share in the suit property but the defendants were not agreeable for the same which led to the filing of the suit for partition.
6. The defendants contested the suit. In their written statement they denied the plaintiffs claim and took the stand that deceased Lachiram at the time of his death was the owner only of Surveys Nos. 110/1, 218 and 149/1. It was alleged that Defendant 1 had herself purchased Surveys Nos. 127, 129/1 and 120/2 from one Iranna on 21-3-1354 Fasli (1945 A.D.) by a registered sale deed and she was the exclusive owner with possession thereof and the plaintiffs had no right over the same and those lands could not be the subject-matter of the partition. The defendants though admitted the relationship but denied the claim of the plaintiffs for partition on the ground that Defendant 3, Purshottam son of Meena Bai was adopted by deceased Lachiram under the registered Deed of Adoption dated 29-4-1970 and that Lachiram had also executed the Deed of Will on the same date i.e. dated 29-4-1970 in favour of Purshottam, Defendant 3 bequeathing the suit properties to Defendant 3 and as such the plaintiffs have no right over any of the suit properties. With
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