Case Note & Summary
The appellant, H.M. Rudraradhya, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 23.01.2010 passed by the Presiding Officer, Fast Track Court-I, Bangalore Rural District, in R.A. No.18/2007. The first appellate court had allowed the appeal and set aside the judgment and decree dated 16.12.2006 passed by the Civil Judge (Jr.Dn.) & JMFC, Hoskote, in O.S. No.295/1996. The suit was filed by the appellant for declaration and injunction. The trial court had decreed the suit in favor of the appellant. The first appellate court reversed the trial court's decision. The High Court admitted the appeal on a substantial question of law: whether the first appellate court was justified in reversing the trial court's judgment without considering the mandatory requirement of examining at least one attesting witness to prove the Will under Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925. The High Court noted that the first appellate court had reversed the trial court's judgment without considering that the propounder of the Will had not examined any attesting witness. The High Court held that the first appellate court's judgment was perverse and liable to be set aside. Consequently, the High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court.
Headnote
A) Civil Procedure - Regular Second Appeal - Substantial Question of Law - Section 100 CPC - The appeal involves a substantial question of law regarding the proof of a Will. The High Court framed the question whether the first appellate court erred in reversing the trial court's decree without insisting on examination of an attesting witness. (Para 1) B) Succession - Proof of Will - Attestation - Section 63 Indian Succession Act, 1925 and Section 68 Indian Evidence Act, 1872 - A Will must be proved by examining at least one attesting witness. The first appellate court reversed the trial court's judgment without considering that the propounder of the Will failed to examine any attesting witness. Held that the first appellate court's judgment is perverse and liable to be set aside. (Paras 2-4)
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's judgment without considering the mandatory requirement of examining at least one attesting witness to prove the Will under Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court.
Law Points
- Section 100 CPC
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
- Attestation of Will
- Substantial Question of Law
- Reversal of Concurrent Findings
