Case Note & Summary
The case involves a property dispute over premises situated at CTS No.212, Nana Peth, Pune. The respondents (original plaintiffs) filed Special Civil Suit No.113 of 1994 seeking declaration of title and possession based on a Will dated 13th October, 1935 executed by Shankar Daji Tisgaonkar, who was the original owner. The appellant (original defendant) claimed rights under a subsequent Will dated 18th April, 1988 executed by Godubai, who was the daughter of Shankar Daji Tisgaonkar. The trial court dismissed the suit, but the first appellate court (District Judge-5, Pune) allowed the appeal, declaring that the plaintiffs had acquired right, title and interest in the suit property under the 1935 Will to the extent of half share and that the 1988 Will was illegal and not binding on the plaintiffs. The first appellate court directed the defendant to deliver possession of the suit premises and ordered a separate enquiry for future mesne profits. The defendant appealed under Section 100 of the Code of Civil Procedure, 1908. The High Court considered the substantial question of law regarding the validity of the Wills. The court noted that the defendant failed to prove the validity of the 1988 Will, as the attesting witnesses were not examined and the Will was not proved in accordance with law. The High Court upheld the findings of the first appellate court, finding no perversity, and dismissed the appeal with no order as to costs.
Headnote
A) Succession - Will - Validity - Burden of Proof - The court considered the validity of two Wills: one dated 13th October, 1935 executed by Shankar Daji Tisgaonkar and another dated 18th April, 1988 executed by Godubai in favour of the defendant. The first appellate court held that the plaintiffs had acquired right, title and interest in the suit property under the 1935 Will to the extent of half share and that the 1988 Will was illegal and not binding on the plaintiffs. The High Court upheld this finding, noting that the defendant failed to prove the validity of the 1988 Will. (Paras 1-3) B) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The appeal under Section 100 of the Code of Civil Procedure, 1908 was admitted on the substantial question of law regarding the validity of the Wills. The High Court found no perversity in the findings of the first appellate court and dismissed the appeal. (Paras 1, 22) C) Mesne Profits - Order 20 Rule 12 CPC - Separate Enquiry - The first appellate court ordered a separate enquiry for future mesne profits under Order 20 Rule 12 of the Code of Civil Procedure, 1908, which was not challenged by the plaintiffs. The High Court upheld this direction. (Para 3)
Issue of Consideration
Whether the Will dated 13th October, 1935 executed by Shankar Daji Tisgaonkar was valid and whether the subsequent Will dated 18th April, 1988 executed by Godubai in favour of the defendant was illegal and not binding on the plaintiffs.
Final Decision
The High Court dismissed the second appeal with no order as to costs, upholding the judgment and decree of the first appellate court.
Law Points
- Will interpretation
- Succession rights
- Burden of proof
- Validity of Will
- Section 100 CPC
- Order 20 Rule 12 CPC
