Jurisdiction U/S 100 CPC Is So Limited That Even Wrong Or Grossly Inexcusable Finding Of Fact Cannot Be Interfered With: Bombay High Court

The case arose as Eknath Genu Pawar obtained a declaration from the trial court of his being the exclusive owner in possession of the suit properties on the basis of a will executed by one Laxmibai on 30.06.1956. Lower appellate court quashed and set aside the judgment and decree passed by the trial court and dismissed the suit.

The facts leading to the dispute are as follows: Ganu Haral was the original owner of the suit properties. After his demise his widow Laxmibai inherited those. Laxmibai died in the year 1958 and was survived by four daughters Anjanabai, who was initially the plaintiff No. 1, Manjulabai, Gayabai and Sarubai. The respondents are the heirs of Manjulabai. Pawar is the biological son of Anjanabai. Anjanabai died during pendency of the suit and her name was deleted and it was thereafter prosecuted by the appellant alone. He averred that Anjanabai was maintaining her mother Laxmibai and out of love and affection the latter executed a will on 30.06.1956 with the consent of all her daughters. She bequeathed the suit properties to him and since after her demise he has been in exclusive possession of the suit properties as owner and claimed declaration to that effect.

Respondents did not dispute the relationship nor did they dispute that Laxmibai was the original owner of the suit properties but denied that she had executed any will and bequeathed the suit properties to the appellant. They further contended that all the entries in the revenue record are false and fabricated. A bogus will has been brought into existence. They further contended that Laxmibai had gifted the suit properties to her daughter Manjulabai on 04.03.1940 by way of a registered gift deed and on that basis Manjulabai alone had become the exclusive owner and was in possession of the suit properties. Out of one of the suit properties Manjulabai sold Survey No. 135/A/2 to the respondent No. 5 by a registered sale-deed dated 06.01.1976.

The single judge stated that it is quite apparent that the scope of the present enquiry is limited in ascertaining whether the observations and conclusions of the lower appellate court holding the appellant to have failed to prove the will are legally tenable or at least plausible on the basis of correct appreciation of the evidence.

Needless to state that in view of the provisions of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, examination of at least one attesting witness is necessary for proof of a will. Section 3 of the Transfer of Property Act lays down as to what is meant by 'attestation'.

The single judge noted that the court in exercise of the powers under Section 100 of the Code of Civil Procedure cannot reappreciate the circumstances and evidence to reach a different conclusion.

In view of such a position in law when the facts and circumstances and the evidence on the record are sufficient to demonstrate that the reasoning adopted by the lower appellate court is on correct appreciation of fact and law and when it has taken a plausible view about the will having not been duly proved, it would not be a correct to reappreciate the evidence and to reach another conclusion.

Case Title : Eknath Genu Pawar & ors V Dattu Santram Haral & ors

Citation: 2022 LiveLaw (Bom) 143

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