2008 Supreme(SC) 60

2008(1) Supreme 385
Supreme Court of india
C.K. Thakker & Altamas Kabir, JJ.
Gaudiya Mission — Petitioner
versus
Shobha Bose & Anr. — Respondents
Appeal (civil) 398 of 2008
Decided on : 15-01-2008

Important point
Bare reading of the Section 384 shows that it is a regular appeal and all questions i.e. questions of fact and of law are open to urge before the appellate Court.

Headnote:Indian succession Act, 1925 - Section 384 – Testamentary suit filed by respondent1 for estate of her deceased sister – Objections there against by Appellant mission on plea that deceased had executed a Will bequeathing the properties in favour of mission and that Will was duly registered and deceased even executed a codicil in favour of mission – Sale deed produced by Respondent1 allegedly executed by deceased long back contending that signature on sale deed and in Will did not tally – Single judge of High Court himself comparing handwriting of deceased in sale deed and in Will held that Will was surrounded by suspicious circumstances and held that respondent 1 being real sister of deceased was entitled to letter of administration – Special appeal before division Bench of High Court – Dismissed in Limine – Appeal – Plea of appellant mission that appeal filed before Division bench of High Court was a regular statutory appeal and it being in nature of First Appeal it was incumbent on Division Bench of High Court to admit it after appreciating evidence on record by a detailed and reasoned judgment –- Appellant was right in submitting that Division Bench of the High Court ought to have admitted appeal - It was not right in dismissing statutory appeal in limine - Appeal instituted by appellant before Division Bench was a statutory appeal under Section 384 of Indian Succession Act, 1925 - Bare reading of Section 384 shows that it is a regular appeal and all questions i.e. questions of fact and of law are open to urge before appellate Court - In the circumstances, it was expected of Division Bench to consider all submissions and contentions of parties - Will as well as Codicil were executed in 1994 and 1996 and both were duly registered, was one of relevant factors which ought to have been kept in mind by Division Bench -– Contention of respondent that scope of appeal before Division Bench was very much limited found unacceptable - Considering fact that an appeal under Section 384 of Indian Succession Act is a regular appeal, Held that arguable points raised by appellant-Mission in appeal ought to have been admitted by Division Bench - Appeal allowed. (Paras 12, 14, 15, 18, 19, 20)

       (1975) 1 SCR 611: AIR 1974 SC 2048, Relied upon.

       Facts of the case:-

       1.A Testamentary suit was filed by respondent1 for estate of her deceased sister herein in the instant case. Objections there against were filed by Appellant mission on plea that deceased had executed a Will bequeathing the properties in favour of mission and that Will was duly registered and deceased even executed a codicil in favour of mission. A Sale deed was produced by Respondent1 allegedly executed by deceased long back contending that signature on sale deed and in Will did not tally. Single judge of High Court himself comparing handwriting of deceased in sale deed and in Will held that Will was surrounded by suspicious circumstances and held that respondent 1 being real sister of deceased was entitled to letter of administration. Special appeal before division Bench of High Court was dismissed in Limine.

       2.Present Appeal has been filed against said order of High Court.

       Findings of the Court :

       The Court held Appellant was right in submitting that Division Bench of the High Court ought to have admitted appeal. It was not right in dismissing statutory appeal in limine. Appeal instituted by appellant before Division Bench was a statutory appeal under Section 384 of the Indian Succession Act, 1925. Bare reading of the Section 384 shows that it is a regular appeal and all questions i.e. questions of fact and of law are open to urge before appellate Court. In the circumstances, it was expected of Division Bench to consider all submissions and contentions of parties. Will as well as Codicil were executed in 1994 and 1996 and both were duly registered, was one of relevant factors which ought to have been kept in mind by Division Bench. Again, even if it was held that a Court of law has power, authority and jurisdiction to compare handwritings under Section 73 of Evidence Act, the point raised as to whether on facts and in circumstances of the case and in the light of an application made by appellant Mission that they may be sent to hand-writing expert, the Court should have undertaken the exercise of comparison of hand-writings which was a relevant issue. Contention of respondent that scope of appeal before Division Bench was very much limited found unacceptable. Considering fact that an appeal under Section 384 of Indian Succession Act is a regular appeal, Held that arguable points had been raised by appellant-Mission in the appeal which ought to have been admitted by the Division Bench. Appeal was accordingly allowed.

       Case referred :

       1.Asha Devo v. Dukhi Sao, (1975) 1 SCR 611 : AIR 1974 SC 2048 — Relied upon. (Para 16)

       Result: Appeal allowed.