Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
MANGESH S. PATIL, J.
Eknath Genu Pawar, died his legal representatives - Appellant
Versus
Dattu Santram Haral, died his legal representatives – Respondent
Second Appeal No. 224 of 1992 With CA/4837/2015 In SA/224/1992
Decided on : 13-04-2022
Code of Civil Procedure, 1908 - Section 100, (3) - Indian Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Section 68 - Transfer of Property Act, 1882 - Section 3 - Properties - Will - Entries In Revenue Record Are False And Fabricated - Appellant with his biological mother filed suit with averrments that his maternal grand father was original owner of suit properties - After his demise those were mutated in name of his widow Laxmibai in government and revenue record - Laxmibai died and was survived by four daughters - Respondents contested suit by filing a joint written statement - They did not dispute relationship nor did they dispute that Laxmibai was original owner of suit properties but denied that she had executed any will and bequeathed suit properties to appellant - They further contended that all entries in revenue record are false and fabricated - Whether observations and conclusions of lower appellate court holding appellant to have failed to prove will are legally tenable or at least plausible on basis of correct appreciation of evidence – Held, Fact that, in a series of cases, this Court was compelled to interfere was because true legislative intendment and scope of Section 100, C.P.C. have neither been appreciated nor applied - A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly mis-appreciated either by lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross mis-appreciation of evidence involves injustice and it is duty of High Court to redress such injustice – Court would like to reiterate that justice has to be administered in accordance with law - In view of such a position in law when facts and circumstances and evidence on record are sufficient to demonstrate that reasoning adopted by lower appellate court is on correct appreciation of fact and law and when it has taken a plausible view about will having not been duly proved, it would not be a correct to reappreciate evidence and to reach another conclusion – Court therefore, conclude that none of aforementioned substantial question of law formulated by learned advocate for appellant arise in this second appeal – Appeal dismissed.
JUDGMENT :
This is a second appeal of the plaintiff. He had succeeded in obtaining a decree for declaration of his being the exclusive owner in possession of the suit properties on the basis of a will executed by one Laxmibai on 30.06.1956 who was his maternal aunt. But he is aggrieved by the judgment and order of the lower appellate court which allowed the respondents’ (defendants) appeal, quashed and set aside the judgment and decree passed by the trial court and dismissed the suit.
2. The second appeal was admitted on 22.09.1992 without formulating substantial questions of law as is mandated by Section 100 (3) of the Code of Civil Procedure. Having noticed this fact, by the order dated 23.02.2022 I had called upon the learned advocate Mrs. Deshmukh for the appellant to formulate and tender substantial questions of law. She has submitted those on the last date and I have heard the arguments of both the sides on those substantial questions which read as under :
(B) Has not lower court committed grave error of law in ignoring test with regard to authenticity of will as laid down by the Apex Court ?
(C) Was it not incumbent on lower court to appreciate well settled principle of law that so called omission of technical nature would not certainly discredit the will in the presence of other circumstances which overwhelmingly point to the due execution of will by the testator ?
(D) Has not the lower Appellate Court been in grave error in absolutely ignoring the fundamental tenet of law that title follows possession ?
(E) Has not lower appellate Court committed grave error in refusing to grant injunction on finding that respondents have failed to prove their possession ?
(F) Has not lower appellate Court committed serious error in not taking into account failure of respondents to prove gift deed and being not in possession of the suit land and their resistance to the suit entails injunction in favour of appellants ?”
3. These questions arise from following set of facts :
(ii) Anjanabai died during pendency of the suit and her name was deleted and it was thereafter prosecuted by the appellant alone. He averred that Anjanabai was maintaining her mother Laxmibai and out of love and affection the latter executed a will on 30.06.1956 with the consent of all her daughters. She bequeathed the suit properties to him and since after her demise he has been in exclusive possession of the suit properties as owner and claimed declaration to that effect.
(iii) He lastly averred that the respondents on the basis of an alleged gift got mutated some of the suit properties in their name under the pretext of Laxmibai having gifted the suit properties to Manjulabai. On that basis Manjulabai had also executed a sale-deed of one of the suit properties in favour of the respondent No. 5. But the respondent No. 5 was never in possession of any portion of the suit properties.
(iv) The respondents contested the suit by filing a joint written statement. They did not dispute the relationship nor did they dispute that Laxmibai was the original owner of the suit properties but denied that she had executed any will and bequeathed the suit properties to the appellant. They further contended that all the entries in the revenue record are false and fabricated. A bogus will has been brought into existence. They also denie
A will's validity requires proof of execution, with the burden resting on its propounder to eliminate any suspicious circumstances surrounding its execution.
The burden of proving the execution of a Will rests on the propounder, who must dispel any suspicious circumstances to establish its validity.
The propounder of a Will must prove its execution and attestation in accordance with law, and any suspicious circumstances surrounding the Will must be dispelled for it to be considered valid.
A will can be proved through secondary evidence when attesting witnesses are unavailable, provided the statutory requirements for execution are met.
(1) Proof of execution of Will – Mere nomenclature of a person in Will as an Identifier is not sufficient to hold that Will was not attested by two witnesses.(2) High Courts should restrain itself fr....
A registered Will must be properly executed and attested according to the Indian Succession Act and Evidence Act; failure to satisfy these legal requirements invalidates claims based on the Will.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
