Case Note & Summary
The appellant, Kasturibai w/o Dadarao Wankhade, filed a second appeal challenging the concurrent judgments of the trial court and first appellate court in a partition suit. She had originally filed Spl. Civil Suit No. 28/1977 seeking partition and separate possession of the property left by her father, Pandhari Zamre. The appellant is his married daughter. The suit was opposed by her step-brothers and mother (respondents), who contended that the deceased had executed a Will (Exh.-44) and that the appellant was entitled only to the share given under that Will. The trial court found that the Will was duly proved under Section 68 of the Indian Evidence Act, 1872, and partly decreed the suit granting the appellant her share as per the Will. The appellant's appeal against this decree was dismissed by the first appellate court. In the second appeal, no substantial question of law was framed at the time of admission on 04.08.1992. However, after hearing both sides, the High Court identified the only substantial question as whether the Will Exh.-44 was proved as required by Section 68 of the Indian Evidence Act. The High Court examined the evidence and found that the trial court's conclusion that the Will was duly proved was not perverse. The court noted that the appellant's challenge to the Will's proof was not substantiated. Consequently, the High Court dismissed the second appeal, upholding the concurrent findings. The court did not frame any additional substantial questions of law and found no merit in the appeal.
Headnote
A) Evidence Act - Proof of Will - Section 68 Indian Evidence Act, 1872 - Attestation - The substantial question of law was whether the Will (Exh.-44) was proved in accordance with Section 68 of the Indian Evidence Act, 1872. The appellant/plaintiff, a married daughter, claimed a share in her father's property by inheritance, which was opposed by step-brothers and mother relying on a Will. The trial court and first appellate court concurrently held that the Will was duly proved. The High Court, in second appeal, found no perversity and dismissed the appeal, holding that the Will was proved as required by law. (Paras 3-5)
Issue of Consideration
Whether Will Exh.-44 has been proved as required by Section 68 of the Indian Evidence Act, 1872?
Final Decision
The Second Appeal is dismissed. The concurrent judgments of the trial Court and first appellate Court are upheld. No order as to costs.
Law Points
- Will
- Proof of Will
- Section 68 Indian Evidence Act
- 1872
- Attestation
- Partition
- Hindu Succession Act
