Case Note & Summary
The applicants, Baban Ramchandra Shukla, Nalini Vinayakrao Joshi, and Malti Jagannathrao Tembhurne, filed a review application before the Bombay High Court at Nagpur seeking review of the judgment and order dated 30 June 2017, which dismissed their Civil Revision Application No.91 of 2016. The Civil Revision Application had challenged the order dated 14 September 2016 passed by the Court of Joint Civil Judge Senior Division, Nagpur, rejecting their application for grant of heirship certificate under the Bombay Regulation VIII of 1827. The dispute pertained to the property left behind by Eknath Ganesh Kasture, who died in 1958. The applicants claimed that Nanibai, the daughter of Eknath, had executed a Will on 1 October 2003, registered on 15 October 2003, bequeathing her share in the property to applicant no.1 Baban. They also contended that Laxman, the son of Eknath, died issueless, and thus his share devolved upon them. The non-applicants, Parag Arvind Shukla and Sharad Arvind Shukla, who are the sons of Arvind (son of Nanibai), objected to the application. The trial court rejected the application on the ground that the Will was not proved as required by law. The High Court, in the Civil Revision Application, upheld the trial court's order, finding that the attesting witness Shridhar Paunikar did not depose about the execution of the Will in accordance with Section 68 of the Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925. In the review application, the applicants argued that there was an error apparent on record because the attesting witness had stated that the Will was executed in his presence. However, the High Court noted that the witness had not stated that the testatrix signed the Will in his presence or that he signed in her presence, which is essential for due execution. The Court also observed that the witness had not identified the signatures of the testatrix or the other attesting witness. Consequently, the Court found no merit in the review application and dismissed it, confirming the earlier orders.
Headnote
A) Heirship Certificate - Bombay Regulation VIII of 1827 - Proof of Will - The applicants sought heirship certificate based on a Will allegedly executed by Nanibai in favour of applicant no.1. The Court held that the Will was not proved as the attesting witness failed to depose about the execution as required under Section 68 of the Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925. The review application was dismissed as no error apparent on record was shown. (Paras 1-10)
Issue of Consideration
Whether the applicants are entitled to a review of the judgment dismissing their application for grant of heirship certificate under Bombay Regulation VIII of 1827, on the ground that the Will executed by Nanibai was not duly proved as per Section 68 of the Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925.
Final Decision
The review application is dismissed. The judgment and order dated 30 June 2017 and the trial court order dated 14 September 2016 stand confirmed.
Law Points
- Heirship certificate
- Bombay Regulation VIII of 1827
- Will execution
- Attesting witness
- Section 68 Evidence Act
- Section 63 Indian Succession Act
- 1925
