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Showing posts with label WILL. Show all posts
Showing posts with label WILL. Show all posts
Saturday, May 4, 2013

whether the will of one Smt. Nagammanni was validly executed, and whether the same was duly proved by the respondent no.1 and another (original plaintiffs). - whether a learned Judge of the High Court of Karnataka was right in interfering in Second Appeal, into the concurrent findings of the Trial Court and the Lower Appellate Court in exercise of High Court’s powers under Section 100 of Code of Civil Procedure.- A Will, has to be executed in the manner required by S 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section “which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances”, as observed by this Court in paragraph 11 of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available. - we do hold that the plaintiffs/respondents had proved that Smt. Nagammanni had duly executed a will on 24.10.1943 in favour of the plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The finding of the Trial Court as well as the First Appellate Court on issue no.2 was clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the Trial and Appellate Court, though concurrent, were bad in law and perverse and contrary to the evidence on record. The second appeal was, therefore, rightly allowed by him. Accordingly, we dismiss the present civil appeal. The Suit No.32 of 1975 filed by the respondents in the Court of Principal Civil Judge at Mandya in Karnataka will stand decreed. They are hereby granted a declaration of their title to the suit property, and for a permanent injunction restraining the defendants from interfering with their possession thereof. In case their possession has been in any way disturbed, they will be entitled to recover the possession of the concerned property, with future mesne profits. In the facts of the present case, however, we do not order any costs. ………..

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Page 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1071 OF 2006 M.B. Ramesh (D) By LRS. …Ap...
Wednesday, March 14, 2012

GENUINENESS OF THE WILL - PARTITION= 31. In view of the above discussion, we hold that the learned Single Judge was clearly in error in reversing the well-reasoned finding recorded by the trial Court on the issues of execution of Will dated 10.2.1992 by Shri Harishankar and its genuineness and validity. Consequently, the appeals are allowed, the impugned judgement is set aside and the one passed by the trial Court is restored. The parties are left to bear their own costs.

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