Case Note & Summary
The case involves a second appeal by the original plaintiff, Eknath Genu Pawar (since deceased, represented by his legal heirs), against the judgment of the lower appellate court which reversed the trial court's decree. The plaintiff had sought a declaration of exclusive ownership and possession of suit properties based on a will executed by his maternal aunt, Laxmibai, on 30.06.1956. The trial court decreed the suit, but the lower appellate court allowed the defendants' appeal and dismissed the suit. The second appeal was admitted on 22.09.1992 without formulating substantial questions of law. The court later called upon the appellant to formulate substantial questions, which were framed as: (A) whether the lower court misdirected itself in not applying the proper test of proof of execution of will under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act; (B) whether the lower court ignored the test regarding authenticity of will as laid down by the Apex Court; and (C) whether it was incumbent on the lower court to appreciate the principle that omission of the attesting witness to state that the testatrix signed in his presence does not invalidate the will. The appellant argued that the lower appellate court erred in rejecting the will without proper application of legal principles. The respondents contended that the will was surrounded by suspicious circumstances and was not duly proved. The court analyzed the evidence, noting that the attesting witness (PW2) had identified his signature and the testatrix's signature on the will, and the will was registered. The court held that the lower appellate court's finding that the will was not proved was perverse and not based on proper appreciation of evidence. The court allowed the appeal, set aside the lower appellate court's judgment, and restored the trial court's decree.
Headnote
A) Succession Law - Execution of Will - Proof of Will - Section 63 Indian Succession Act, 1925; Section 68 Indian Evidence Act, 1872 - The lower appellate court failed to apply the correct test for proof of execution of a will, which requires at least one attesting witness to prove execution and attestation. The court also ignored the principle that mere suspicious circumstances do not invalidate a will if the propounder explains them satisfactorily. Held that the lower appellate court's judgment was perverse and liable to be set aside (Paras 2-12). B) Evidence Law - Attestation of Will - Section 68 Indian Evidence Act, 1872 - The lower appellate court erred in holding that the will was not proved because the attesting witness did not state that the testatrix signed in his presence. The court overlooked that the witness had identified his signature and the testatrix's signature, and the will bore an endorsement of the Sub-Registrar. Held that the will was duly proved (Paras 8-12). C) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The second appeal was admitted without formulating substantial questions of law, but the court subsequently framed questions and heard arguments. The court held that the lower appellate court's findings were perverse and not based on proper appreciation of evidence, thus raising substantial questions of law (Paras 2-3).
Issue of Consideration
Whether the lower appellate court misdirected itself in not applying the proper test of proof of execution of will as required by Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, and whether it ignored the test with regard to authenticity of will as laid down by the Apex Court.
Final Decision
The second appeal is allowed. The judgment and order of the lower appellate court is quashed and set aside. The judgment and decree of the trial court is restored. The suit is decreed in terms of the trial court's decree.
Law Points
- Execution of will
- Proof of will
- Section 63 Indian Succession Act
- Section 68 Indian Evidence Act
- Attestation of will
- Suspicious circumstances
- Appellate court's interference
