ORAL JUDGMENT : - This is Second Appeal filed by the appellant/plaintiff challenging the concurrent judgments, whereby the suit brought by her for partition and separate possession has been partly decreed. The trial Court has found that the plaintiff is not entitled to any share in the property of her father by way of inheritance but only on account of W III and, therefore, the trial Court has given her share as per the said Will Exh. -44. The appeal filed by the plaintiff, claiming share as heir and challenging the Will, has been dismissed by the appellate Court by maintaining the judgment and decree of trial Court.

2. No substantial question of law has been framed while admitting the appeal on 4 -8 -1992.

3. After hearing Advocate B. T. Patil for the appellant/plaintiff and Advocate C.A. Joshi, Advocate for respondents/ defendants, it has become clear that the only substantial question of law sought to be canvassed by the present appellant is; whether Will Exh. -44, used against her in both the Courts below, has been proved as required by section 68 of the Indian Evidence Act?

4. The present appellant filed Civil Suit, vide Spl. Civil Suit No. 28/1977, and she claimed share in the property left behind by her father Pandhari Zamre. The appellant is his married daughter. The claim was opposed by her step brothers and mother by pointing out that there is a Will executed by deceased Pandhari and she is entitled to inherit property only to the extent of share given to her in that Will. The parties adduced evidence. The trial Court has found that the case of present appellant that Will is not proved as contemplated under section 68 of the Indian Evidence Act, is not substantiated. It has held that the Will is duly proved and, therefore, granted the appellant/plaintiff the share as mentioned in that Will. The appellate Court has maintained these findings.

5. Advocate B. T. Patil invites attention to the discussion as contained in both the judgments. He points out that the defendants examined two witnesses, to prove due execution of the Will. DW3 janrao, did not speak anything about the other attesting witnesses and the other attesting witness could not have been examined as he was dead. DW 4 Gulabrao, who was Administrator appointed under the Will has, thereafter, been examined as their witness by the defendants. The said Gulabrao has stated about the signature of Pandhari in presence of the attesting witnesses and signature of attesting witnesses in presence of Pandhari. According to him, it is not sufficient compliance of section 68 of the Indian Evidence Act. He has relied upon judgment of the Honble Apex Court in Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346 to contend that attesting witness DW3 lamao, ought to have stated that other attesting witness Bankatrao also signed in presence of the deceased Pandhari and in his presence. He has also pointed out a judgment of the Andhra Pradesh High Court, in Karri Nookaraju vs. Putra Venkatrao and others, AIR 1974 Andhra Pradesh 13 in this respect. It is argued that as the Will itself is not proved there is no question of the Courts below restricting the inheritance of appellant/plaintiff to the share as mentioned in that Will. It is argued that the share, which is devolved upon the appellant/plaintiff as per intestate succession should, therefore, be given as her share in partition and separate possession.

6. Mr. Joshi, Advocate for the respondents/defendants has contended that the requirement of section 63(1)(c) read with section 68 of the Indian Evidence Act has been satisfied in the facts of the present case. He invites attention to the discussion in this respect as contained in both the judgments. He further argues that the portion of evidence extracted by the appellate Court is itself sufficient to prove compliance with requirements of section 68 of the Indian Evidence Act. He further states that the finding in this respect is concurrent.

7. The perusal of judgme

Click Here to Read the rest of this document