Case Note & Summary
The dispute pertains to agricultural fields Gat No.112 and 113 situated at village Kopra Jankar. Ambadas Damodar Bhalerao, a bachelor priest, owned the suit property. He executed a registered will in favour of Kasabai, a widow who lived with him. Kasabai died on 19.8.1995, and before her death, she executed a will on 4.8.1995 in favour of the defendant Dilip, her grandson. The plaintiffs, Mandakini (wife of Bhanudas, Ambadas's brother) and Prabhavati (daughter of Bhanudas), claimed to be the legal heirs of Ambadas and sought to set aside the mutation order passed by the Tahsildar and for possession. The trial court dismissed the suit, holding that the defendant became the sole owner by virtue of the two wills. The first appellate court reversed the trial court's decision, leading to the present second appeal by the defendant. The High Court allowed the appeal, holding that the first appellate court had erred in reversing the trial court's findings without properly considering that the plaintiffs had not challenged the will of Ambadas in favour of Kasabai. The court noted that the trial court had correctly appreciated the evidence and that the first appellate court's judgment was perverse. Consequently, the second appeal was allowed, the judgment of the first appellate court was set aside, and the trial court's decree was restored.
Headnote
A) Civil Procedure - Second Appeal - Interference with findings of fact - The High Court in second appeal can interfere if the first appellate court has failed to consider material evidence or has misread the evidence - In the present case, the first appellate court reversed the trial court's decree without properly appreciating the wills and the fact that the plaintiffs did not challenge the will of Ambadas in favour of Kasabai - Held that the first appellate court's judgment was perverse and liable to be set aside (Paras 7-9). B) Succession - Will - Validity - Where a will is not challenged, its validity cannot be questioned - The plaintiffs did not challenge the will executed by Ambadas in favour of Kasabai, and thus the defendant, as grandson of Kasabai, became the owner of the suit property by virtue of the will executed by Kasabai in his favour - Held that the trial court's finding that the defendant became the sole owner was correct (Paras 5-7).
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's judgment and decree without properly appreciating the evidence and the validity of the wills executed by Ambadas and Kasabai.
Final Decision
The second appeal is allowed. The judgment and decree passed by the 3rd Ad-hoc Additional District Judge, Yavatmal dated 5.8.2004 is set aside. The judgment and decree passed by the Civil Judge, Junior Division, Babhulgaon in Regular Civil Suit No.26/1999 dated 12.4.2002 is restored. No order as to costs.
Law Points
- Will
- Succession
- Burden of proof
- Appellate court's interference
- Concurrent findings
- Regular Civil Suit
- Second Appeal
