Case Note & Summary
The case involves a second appeal filed by the original plaintiffs against the judgment and decree of the lower appellate court in Regular Civil Appeal No. 135/2006, which reversed the trial court's decree in Regular Civil Suit No. 19/1998. The suit was for declaration of title and perpetual injunction over agricultural land and house property originally owned by Rama Ramteke. The plaintiffs claimed that Rama executed a Will in their favor, bequeathing the suit property. The defendants contested the Will's validity. The trial court decreed the suit, but the appellate court reversed it, holding that the Will was not proved as the attesting witnesses were not examined. The plaintiffs appealed to the High Court under Section 100 of the Code of Civil Procedure, 1908 (CPC). The High Court framed a substantial question of law regarding the proof of the Will. However, upon examining the evidence, the court found that the plaintiffs failed to examine the attesting witnesses, and the lower appellate court's findings were based on proper appreciation of evidence. The court held that no substantial question of law arose, and the concurrent findings of fact could not be interfered with. The second appeal was dismissed, affirming the appellate court's decision.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - Concurrent findings of fact cannot be interfered with in second appeal unless perverse or based on no evidence - The court held that the findings of the lower appellate court were based on proper appreciation of evidence and did not give rise to any substantial question of law (Paras 10-12).
B) Evidence Act - Will - Proof of Execution - Section 68 Evidence Act - Attesting witness must be examined to prove execution of Will - The court held that since the attesting witnesses were not examined, the execution of the Will was not proved, and the concurrent findings of the courts below were correct (Paras 8-9).
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) raises any substantial question of law, particularly regarding the proof of execution of a Will and the concurrent findings of fact by the lower courts.
Final Decision
The High Court dismissed the second appeal, holding that no substantial question of law arose and the concurrent findings of fact by the lower appellate court were based on proper appreciation of evidence. The judgment and decree of the lower appellate court were confirmed.
Law Points
- Concurrent findings of fact
- Section 100 CPC
- Section 68 Evidence Act
- Will execution proof
- Attesting witness examination
- Substantial question of law
Case Details
2020 LawText (BOM) (01) 168
Second Appeal No. 102/2018
Shri T. G. Bansod for appellants, Shri Deoul Pathak for respondents 1 to 3
Kewalram S/o Sakharam Ramteke, Kusum w/o Sakharam Ramteke, Mahendra Tukaram Ramteke, Pramod Devchchand Ramteke, Dinesh Devchand Ramteke
Khemchand S/o Shalikram Khobragade, Kalidas S/o Shalikram Khobragade, Aniruddha S/o Shalikram Khobragade
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Second appeal against judgment and decree in Regular Civil Appeal No. 135/2006, which reversed trial court's decree in Regular Civil Suit No. 19/1998 for declaration of title and perpetual injunction.
Remedy Sought
Appellants (original plaintiffs) sought to set aside the appellate court's judgment and restore the trial court's decree declaring their title and granting injunction.
Filing Reason
Dissatisfaction with the lower appellate court's reversal of the trial court's decree, which held that the Will executed by Rama Ramteke in favor of plaintiffs was not proved.
Previous Decisions
Trial Court decreed the suit in favor of plaintiffs; Lower Appellate Court reversed the decree, dismissing the suit.
Issues
Whether the second appeal raises any substantial question of law under Section 100 CPC?
Whether the execution of the Will was proved as required under Section 68 of the Indian Evidence Act, 1872?
Submissions/Arguments
Appellants argued that the lower appellate court erred in reversing the trial court's decree and that the Will was duly proved.
Respondents supported the appellate court's findings that the Will was not proved as attesting witnesses were not examined.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The execution of a Will must be proved by examining at least one attesting witness as required under Section 68 of the Indian Evidence Act, 1872. Failure to do so renders the Will unproved.
Judgment Excerpts
The execution of Will is required to be proved in terms of Section 68 of the Indian Evidence Act, 1872.
The concurrent findings of fact recorded by the lower appellate court are based on proper appreciation of evidence and do not give rise to any substantial question of law.
Procedural History
Regular Civil Suit No. 19/1998 was filed by plaintiffs for declaration of title and injunction. The Trial Court decreed the suit. Defendants appealed in Regular Civil Appeal No. 135/2006, which was allowed, reversing the trial court's decree. Plaintiffs then filed Second Appeal No. 102/2018 in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 100
- Indian Evidence Act, 1872: Section 68
