Case Note & Summary
The case involves a second appeal filed by the appellant, Smt. Daisy Senso alias Daisy A. Serrao, who was the original defendant no.1, against the judgment and decree dated 2nd November 2010 passed by the Ad hoc District Judge-2, FTC-II, South Goa, Margao in Regular Civil Appeal No.171/2010. The lower appellate court had dismissed the appeal filed by the appellant against the judgment and decree dated 3rd May 2008 passed by the First Additional Civil Judge Senior Division, Margao in Special Civil Suit No.176/200/I. The respondents, Smt. Ivorine Danslay Noronha and her minor son Master Danivor Danslay Noronha, were the original plaintiffs. They filed the suit seeking declaration of nullity of a Will dated 24th July 1997 allegedly executed by late Danslay Noronha alias Danslay Dominic Mascarenhas, who died on 24th July 1997. The plaintiffs claimed that plaintiff no.1 was the legally wedded wife of the deceased and that the Will was not validly executed. The trial court decreed the suit in favor of the plaintiffs, declaring the Will null and void. The appellant, who was the propounder of the Will, appealed to the first appellate court, which dismissed the appeal. In the second appeal, the appellant contended that the courts below erred in holding that the Will was not proved. The High Court, after hearing arguments, found that the propounder failed to examine any attesting witness, and the circumstances surrounding the execution of the Will were suspicious. The court held that the concurrent findings of fact were based on evidence and were not perverse. Therefore, no substantial question of law arose, and the second appeal was dismissed. The court also noted that the appellant had not raised any substantial question of law in the memorandum of appeal.
Headnote
A) Will - Proof of Execution - Attestation - Section 68 Indian Evidence Act, 1872 and Section 63 Indian Succession Act, 1925 - The propounder of a Will must prove its execution and attestation as required by law. Failure to examine an attesting witness when available leads to an adverse inference that the Will was not duly executed. The court upheld the concurrent findings of the courts below that the Will was not proved due to non-examination of attesting witnesses and presence of suspicious circumstances. (Paras 2-10) B) Second Appeal - Concurrent Findings - Interference - The High Court in second appeal under Section 100 CPC cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The findings of the trial court and first appellate court were based on evidence and not perverse, hence no substantial question of law arose. (Paras 11-12)
Issue of Consideration
Whether the judgment and decree passed by the lower appellate court dismissing the appeal against the trial court's decree declaring the Will dated 24.07.1997 as null and void is sustainable in law?
Final Decision
The Second Appeal is dismissed. The judgment and decree dated 02.11.2010 passed by the Ad hoc District Judge-2, FTC-II, South Goa, Margao in Regular Civil Appeal No.171/2010 is confirmed. No order as to costs.
Law Points
- Will
- proof of execution
- attestation
- suspicious circumstances
- Section 68 Indian Evidence Act
- 1872
- Section 63 Indian Succession Act
- 1925
- adverse inference
- concurrent findings
- second appeal
