Case Note & Summary
The case involves a First Appeal registered as such but to be decided as a Second Appeal under Section 100 of the Code of Civil Procedure, 1908. The appellant, Kavas Khurshad Nariman, challenged the judgment of the lower appellate court concerning the interpretation of a Will and Codicil executed by the testator, Jehangir Bomanji Boman Behram, a rich solicitor who died on 29 December 1949 as a childless widower. The testator had bequeathed his properties to various people. The dispute centered on the construction of the Will and Codicil. The appellant argued that the lower appellate court erred in its interpretation. However, the High Court, presided over by Justice A.V. Nirgude, held that the interpretation of a Will is essentially a question of fact unless there is a misconstruction of legal principles. The court noted that no substantial question of law was framed at the time of admission of the appeal, and the proceeding must be treated as a Second Appeal. Since the appellant failed to demonstrate any substantial question of law, the court dismissed the appeal. The court also disposed of the civil application accordingly.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court must first determine whether any substantial question of law is involved in the appeal, as the proceeding is to be decided as a Second Appeal despite being registered as a First Appeal - The court found that the interpretation of the Will and Codicil by the lower appellate court was a question of fact and did not involve any substantial question of law - Held that the appeal must be dismissed for lack of substantial question of law (Paras 1-4).
Issue of Consideration
Whether the interpretation of a Will and Codicil by the lower appellate court raises any substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is dismissed. No substantial question of law involved. Civil Application also disposed of.
Law Points
- Interpretation of Will is a question of fact
- not law
- unless there is misconstruction of legal principles
- Substantial question of law under Section 100 CPC must be framed at the time of admission
- Second Appeal cannot be converted into First Appeal to bypass Section 100 CPC
