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PETITIONER:

KASHIBAI W/O LACHIRAM & ANR.

Vs.

RESPONDENT:

PARWATIBAI W/O LACHIRAM & ORS.

DATE OF JUDGMENT25/09/1995

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

FAIZAN UDDIN (J)

CITATION:

1995 SCC (6) 213 JT 1995 (7) 48

1995 SCALE (5)615

ACT:

HEADNOTE:

JUDGMENT:

JUDGMENT

Faizan Uddin, J.

1. Leave granted.

2. This appeal at the instance of the plaintiffs has been

directed against the judgment and decree dated 5.2.1992

passed by the High Court of Bombay in Second Appeal No.

682/1981 reversing the judgment and decree of the two Courts

below passed in favour of the plaintiffs-appellants herein.

The appellants herein shall be described as plaintiffs and

the respondents as defendants hereinafter for the sake of

convenience.

3. The following family tree will indicate the inter se

relationship of the parties to the suit out of which the

present appeal arises.

Lachi Ram (Dead)

-----------------------------------------------------------

Kashi Bai (first wife) Parwati Bai (second wife)

Plaintiff/appellant Defendant/respondent

No. 1 No. 1

Sunita Bai (daughter Meena Bai (daughter from

from Kashi Bai) Parvati Bai) Defendant/

Plaintiff/appellant No. 2 respondent No. 2

Purshottam (son of Meena

Bai) Defendant/respondent

No. 3

4. As would be clear from the family tree the plaintiff

No. 1 and defendant No. 1 are the two widows of deceased

Lachiram while the plaintiff No. 2 is the daughter of

Lachiram from his first wife. Kashi Bai and the defendant

No. 2 Meena Bai is his daughter from his second wife,

Parvati Bai. The defendant No. 3, Purshottam is the son of

defendant No. 2. Meena and grand-son of late Lachiram. The

plaintiffs brought this suit for separate possession by

partition of a double storey house, open plot and some

agricultural lands as described in the plaint, situated at

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village Eklara, Taluka Mukhed. The plaintiffs claimed half

share in the suit properties being the legal heirs of

deceased Lachiram. It was alleged by the plaintiffs that

Lachiram during his life time had given survey Nos.171/1,

160 and 159/3 to the plaintiff No. 1 towards her maintenance

in addition to a portion of suit house and placed the

plaintiff No. 1 in possession thereof and she became full

owner of the said land after the Hindu Succession Act, 1956

came into force. It was alleged by the plaintiffs that

deceased Lachiram during his life time challenged the

plaintiffs ownership in respect of survey Nos.171/1, 160 and

159/3 by filing civil suit No. 138/1969 which was dismissed

on 28.12.1970. The said judgment was confirmed in first and

second appeals and thus the plaintiffs became the absolute

owner of the same.

5. Further case of the plaintiffs was that during the life

time of Lachiram survey No. 111/2 and survey No. 129/7 were

purchased by Lachiram in the name of defendant No. 1 and

that survey No. 128/A was received by defendant No. 1 during

the pendency of the suit as a result of a decision of

pending suit between deceased Lachiram and one Naga and,

therefore, the same were also liable to partition and the

plaintiffs were entitled to half share by partition in the

said lands also. It was averred by the plaintiffs that the

defendants were requested for separate possession by

partition to the extent of their half share in the suit

property but the defendants were not agreeable for the same

which led to the filing of the suit for partition.

6. The defendants contested the suit. In their written

statement they denied the plaintiffs claim and took the

stand that deceased Lachiram at the time of his death was

the owner only of survey Nos. 110/1, 218 and 149/1 It was

alleged that the defendant No. 1 had herself purchased

survey Nos. 127, 129/1 and 120/2 from one Iranna on 21st

March 1354 fasli (1945 A.D.) by a registered sale deed and

she was the exclusive owner with possession thereof and the

plaintiffs had no right over the same and those lands could

not be the subject matter of the partition. The defendants

though admitted the relationship but denied the claim of the

plaintiffs for partition on the ground that the defandant

No. 3, Purshottam son of Meena Bai was adopted by deceased

Lachiram under the registered Deed of Adoption dated

29.4.1970 and that Lachiram had also executed the Deed of

Will on the same date i.e. dated 29.4.1970 in favour of

Purshottam, defendant No. 3 becueathing the suit properties

to the defendant No. 3 and as such the plaintiffs have no

right over any of the suit properties. With regard to survey

Nos. 172/1, 160 and 159/3 and the portion of the house the

defendants took the plea that the same were given to the

plaintiffs for their maintenance and, therefore, they were

not entitled to claim any share in the suit properties.

Regarding the decision in Civil Suit No. 138 of 1969 the

defendants contended that the same was not binding on them

as on the death of Lachiram, the defendant No. 3 Purshottam

had become the owner of those properties.

7. After appreciation of evidence on record adduced by the

parties the trial Court decreed the plaintiffs suit for

separate possession by partition. The trial Court recorded

the finding that the defendants had failed to establish the

adoption of Purshottam by late Lachiram and the execution of

will in his favour in respect of the suit properties and

that Lachiram was the owner of all the properties in suit at

the time of his death in which the plaintiffs are entitled

to half share. The trial Court also recorded the finding

that the plaintiffs were the absolute owner of lands bearing

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survey Nos. 172/1, 160 and 159/3 of village Eklara. These

findings were further affirmed by the first Appellate Court

after evaluating the evidence, the High Court took a

contrary view and reversed the findings recorded by the two

Courts. According to the High Court the defendants had

proved the execution of Deed of Adoption and Deed of will in

accordance with law by reason of which the plaintiffs were

held not entitled to claim any share in the suit properties

and, therefore, after setting aside the judgments and degree

of the two Courts below dismissed the suit.

8. Learned counsel for the plaintiffs-appellants

strenuously urged before us that the question of proof of

the Deed of Adoption and the Deed of will is a pure finding

of fact and, therefore, the High Court was not justified in

interfering with the findings of fact arrived at by the two

Courts below, in exercise of its power under Section 100 of

the Code of Civil Procedure. It was submitted that the High

Court was not justified in substituting its own views on re-

appraisal of the evidence on record for that of the two

lower Courts and that the conclusions arrived at by the High

Court are based on conjectures and surmises. It was,

therefore, submitted that the impugned judgment of the High

Court should be set aside.

9. It is no doubt true that after analysing the parties

evidence minutely the trial Court took a definite view that

the defendants had failed to establish that the plaintiff

No. 1, defendant No. 1 and deceased Lachiram had taken the

defendant No. 3. Purshottam in adoption. The trial Court

also recorded the finding that the plaintiff No. 1 was not a

party to the Deed of Adoption as the plaintiff No. 1 in her

evidence has specifically stated that she did not sign the

Deed of Adoption nor she consented for such adoption of

Purshottam and for that reason she did not participate in

any adoption proceedings. On these findings the trial Court

took the view that the alleged adoption being against the

consent of Kashi Bai the plaintiff No. 1, it was not valid

by virtue of the provisions of Section 7 of the Hindu

Adoptions and Maintenance Act, 1956. Section 7 of the Act

provides that any male Hindu who is of sound mind and is not

a minor has the capacity to take a son or a daughter in

adoption. It provides that if he has a wife living, he shall

not adopt except with the consent of his wife. In the

present case as seen from the evidence discussed by the

trial Court it is abundantly clear that plaintiff No. 1

Kashi Bai the first wife of deceased Lachiram had not only

declined to participate in the alleged adoption proceedings

but also declined to give consent for the said adoption and,

therefore, the plea of alleged adoption advanced by the

defendants was clearly hit by the provisions of Section 7

and the adoption can not be said to be a valid adoption.

10. This brings us to the question of the will alleged to

have been executed by deceased Lachiram in favour of his

grand-son Purshottam, the defendant No. 3. Section 68 of

Evidence Act relates to the proof of execution of document

required by law to be attested. Admittedly, a Deed of will

is one of such documents which necessarily require by law to

be attested. Section 68 of the Evidence Act contemplates

that if a document is required by law to be attested, it

shall not be used as evidence until one attesting witness at

least has been called for the purpose of proving its

execution, if there be an attesting witness alive, and

subject to the process of the Court and capable of giving

evidence. A reading of Section 68 will show that

"attestation" and "execution" are two different acts one

following the other. There can be no valid execution of a

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document which under the law is required to be attested

without the proof of its due attestation and if due

attestation is also not proved, the fact of execution is of

no avail. Section 63 of the Indian Succession Act, 1925 also

lays down certain rules with regard to the execution of

unprivileged wills. Clause (C) of Section 63 provides that

the will shall be attested by two or more witnesses, each

one of whom has seen the testator sign or affix his mark to

the will or has seen some other person sign the will, in the

presence and by the direction of the testator, or has

received from the testator a personal acknowledgement of his

signature or mark or the signature of such other person; and

each of the witnesses should sign the will in the presence

of the testator, but it shall not be necessary that more

than one witness be present at the same time and no

particular form of attestation shall be necessary.

11. Here we may also take note of the definition of the

expression "attested" as contained in Section 3 of the

Transfer of Property Act which reads as under:-

"attested", in relation to an

instrument, means and shall be deemed

always to have meant attested by two or

more witnesses each of whom has seen the

executant sign or affix his mark to the

instrument, or has seen some other

person sign the instrument in the

presence and by the direction of the

executant, or has received from the

executant a personal acknowledgement of

his signature or mark, or of the

signature of such other person, and each

of whom has signed the instrument in the

presence of the executant but it shall

not be necessary that more than one of

such witnesses shall have been present

at the same time, and no particular form

of attestation shall be necessary."

Having regard to the afore-mentioned definition an attesting

witness is a person who in the presence of an executant of a

document puts his signature or mark after he has either seen

the executant himself or someone on direction of the

executant has put his signature or affixed his mark on the

document so required to be attested or after he has received

from the executant a personal acknowledgement of his

signature or mark or the signature or mark of such other

person. In the present case the trial Court after a close

scrutiny and analysis of the evidence of the defendant No.

1, Smt. Parvati Bai, Vir Bhadra. Sheikh Nabi. Shivraj and

Gyanoba Patil who are witnesses to the will recorded the

finding that none of them deposed that Lachiram had signed

the said will before them and they had attested it. None of

them except Sheikh Nabi even deposed as to when the talk

about the execution of will was held. The witness Sheikh

Nabi, however, deposed that the talk about the will also

took place at the time of the talk about the adoption. But

this witness too did not depose that deceased Lachiram had

signed the alleged will in his presence. In the absence of

such evidence it is difficult to accept that the execution

of the alleged will was proved in accordance with law as

required by Section 68 of the Evidence Act read with Section

63 of the Indian Succession Act and Section 3 of the

Transfer of Property Act. It may be true as observed by the

High Court that law does not emphasis that the witness must

use the language of the Section to prove the requisite

merits thereof but it is also not permissible to assume

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something which is required by law to be specifically

proved. The High Court simply assumed that Lachiram must

have put his signature on the will Deed in the presence of

the attesting witness Sheikh Nabi simply because the Deed of

Adoption is admitted by the witness to have been executed on

the same day. The High Court committed a serious error in

making the observations that broad parameters of Nabi's

evidence would show that Lachiram executed the will in his

presence, that he signed the will being part of the

execution of the testament and this evidence in its correct

background would go to show that what was required under

Section 63 has been carried out in the execution of the

will. With respect to the High Court we may say that these

findings of the High Court are clearly based on assumption

and surmises and, totally against the weight of the evidence

on record. The trial Court on a close and thorough analysis

of the entire evidence came to a proper conclusion that the

will has not been proved in accordance with law which

finding has been further affirmed by the lower appellate

Court after an independent reappraisal of entire evidence

with which we find ourselves in agreement as there was

hardly any scope or a valid reason for the High Court to

interfere with.

12. Further, it may not be out of place to mention that

Sub-section (1) of Section 100 of the Code of Civil

Procedure explicitly provides that an appeal shall lie to

the High Court from every decree passed in appeal by any

Court subordinate to the High Court, if the High Court is

satisfied that the case involves a substantial question of

law. Sub-section (4) of Section 100 provides that when the

High Court is satisfied that a substantial question of law

is involved in any case it shall formulate that question.

But surprisingly enough the High Court seems to have ignored

these provisions and proposed to reappreciate the evidence

and interfere with the findings of fact without even

formulating any question of law. It has been the consistent

view of this Court that there is no jurisdiction to

entertain a second appeal on the ground of erroneous finding

of fact, based on appreciation of the relevant evidence.

There is a catena of decisions in support of this view.

Having regard to all the facts and circumstances of the

present case discussed above, we are satisfied that there

was no justification for the High Court to interfere with

the well reasoned findings of the two Courts below.

Consequently, this appeal must succeed.

13. In the result the appeal is allowed, the judgment and

decree passed by the High Court are set aside and that of

the trial Court is restored. We make no order as to costs of

this appeal. The respondents shall, however, bear the

plaintiffs cost incurred in trial Court and the first

appellate Court.