Case Note & Summary
The Supreme Court dismissed an appeal by special leave against a judgment of the Punjab & Haryana High Court in a property dispute revolving around the genuineness of a Will. Bhagwana executed a Will on October 15, 1957, and died on September 2, 1958. The appellant, Parsini (since deceased through legal representatives), claimed the property of her father Bhagwana. The respondents claimed under a Will executed by Bhagwana in favour of Atma Ram, respondent No.1. The Will was not produced as it was allegedly lost; the respondents obtained permission to lead secondary evidence. The trial court dismissed the appellant's suit, upholding the Will. The first appellate court affirmed the trial court decree. In Second Appeal No.451 of 1972, a learned Single Judge of the High Court set aside the concurrent findings and granted a decree in favour of the appellant. In Letters Patent Appeal No.521 of 1975, the Division Bench restored the trial court decree dismissing the suit. The appellant then approached the Supreme Court. The appellant contended that in an earlier litigation between collaterals, the appellant was not a party; that courts below erred in going into the genuineness of the Will; that the Will was shrouded in suspicious circumstances; and that the burden on the propounder of the Will had not been discharged. The respondents relied on secondary evidence and the findings of the trial and appellate courts. The Supreme Court held that the burden lies on the propounder of a Will to remove all doubts regarding genuineness, but the trial court and appellate court had considered all facts and circumstances and recorded a concurrent finding that the Will was executed by Bhagwana in favour of Atma Ram. The learned Single Judge in second appeal had trenched upon the limited parameter of a second appeal by re-appreciating evidence as if he were the first appellate court. The Division Bench correctly restored the trial court decree. The Supreme Court found no substantial question of law warranting interference and dismissed the appeal.
Headnote
A) Evidence Law - Proof of Will - Burden on Propounder and Secondary Evidence for Lost Will - Not mentioned - The Will executed by Bhagwana was allegedly lost, and respondents were permitted to lead secondary evidence. The propounder of a Will bears the burden to remove all doubts regarding genuineness. The trial court and first appellate court considered evidence and held the Will proved in favour of respondent No.1. Held that concurrent findings of fact on Will execution should not be interfered with absent a substantial question of law. B) Civil Procedure - Second Appeal - Scope of Interference with Findings of Fact - Not mentioned - The learned Single Judge in second appeal re-appreciated evidence as if he were the first appellate court and reversed concurrent findings on Will genuineness. The Division Bench correctly held that the Single Judge exceeded the limited parameter of second appeal. Supreme Court agreed no substantial question of law warrants interference. Held appeal dismissed.
Issue of Consideration
Whether the Division Bench of the High Court rightly restored the concurrent findings of the trial court and appellate court on genuineness of the Will, and whether the learned Single Judge exceeded the limited scope of a second appeal by re-appreciating evidence
Final Decision
Appeal dismissed. Supreme Court held no substantial question of law; Division Bench rightly restored trial court decree dismissing suit.
Law Points
- The propounder of a Will bears the burden to remove all doubts as to its genuineness
- secondary evidence may be led when a Will is lost
- in a second appeal the court's scope is limited to substantial questions of law and cannot reappreciate evidence de novo
- concurrent findings of fact by lower courts on Will execution should not be disturbed absent a substantial question of law
