Guj HC | Appellate court’s reasoning of non-examination of scribe of Will wrong; Court allows appeal calling it serious error of law

Gujarat High Court: A.P. Thaker, J., allowed a petition which was filed aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court in the connection for the partition alleging that the properties were of the joint family properties and possession of 1/2 share in the suit property.

The case of the plaintiff is that the suit-properties are the joint family properties of the deceased Diwala Gausa, the plaintiff and the defendant. It is the further case of the plaintiff that deceased Diwala Gausa was the Karta of the joint family and Diwala Gausa purchased the suit properties with the aid of joint family funds under the provisions of the Bombay Tenancy and Agricultural Lands Act.

The defendant had challenged the judgment of the First Appellate Court on the ground that the First Appellat Court had erred in holding that the Diwala Gausa was not in sound state of mind and he did not understood the effect of the disposition he had made. According to defendant, the Appellate Court overlooked the fact that after marriage of the plaintiff, the plaintiff had been residing at his Father in-law’s house at Ghantoli. It was also alleged that the Appellate Court had not considered the important fact that the defendant’s father died before 30 years so the deceased Diwala Gausa had naturally more love and affection to his grand-son, who lost the love of his father at the age of around 12 or 14 years forever. It was also contended that the observation of the first appellate Court that at the time of execution of the Will false statement was made that no son of the deceased was alive, was contrary to the documentary evidence on record.

The Court raised 2 questions of law:

  • Whether on the facts and circumstances of the case, the lower Court has committed error in holding that the Will on which the appellant relied on is a Will executed by the deceased Diwala Gausa in sound state of mind on 11-1-1975?
  • Whether after the appellate Court came to the conclusion that the plaintiff does not prove that the suit properties are undivided family properties and erred to decree the suit of the plaintiff for one half share in the Suit property?

The trial Court had held that the suit properties were the self acquired properties of the deceased Diwala Gausa. The trial Court had also held that the plaintiff had failed to prove that the Suit properties were undivided family properties of the parties. The First Appellate Court had ultimately passed the Order to the effect that the plaintiff  was entitled to partition with metes and bounds and also directed the Collector, Surat or any subordinate to the Collector deputed by him, to make partition and separation of the lands and had also passed order for drawing the decree which was again challenged by the defendant in the Second Appeal.

Ms Dhara Shah, advocate for the appellant had vehemently submitted that deceased Diwala Gausa had executed the Will whereby the properties had been bequeathed to the appellant therein. She had also submitted that the plaintiff had never resided with the deceased and he was residing with his wife at his father-in-law’s house. She also submitted that the allegations made by the plaintiff regarding the properties being HUF, it was not proper as entire properties were self-acquired properties of the deceased.

Mr Nagesh Sood, advocate as an amicus curiae, had submitted that there were two agricultural properties and the deceased was only Karta of HUF. He had also submitted that the properties being agricultural lands and deceased being Karta of the HUF, the deceased had no right to bequeath the properties in favour of the defendant.

The Court put forward Section 59 and Section 82 of the Indian Succession Act and concluded that even a person who is deaf or dumb or blind can make a Will if they are able to do what they do by it. Even a person who is insane may make a Will during interval if he is of sound mind. Therefore, under Section 59, only rider for non-capability of making Will is of being minor who is prohibited to dispose of his property by Will. The Court further explained that a Will is an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator’s acquisitions during his life time, to be acted upon only on his/ her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. The Court further throwing light on Section 68 of the Act stated that requirement of Section 68 of the Evidence Act in proving the Will was to produce at least one of the attesting witnesses. In view of the provisions of Section 68 of the Evidence Act, there was no need to examine the scribe of Will; however, the appellate Court had heavily relied on the fact that the scribe of the Will has not been examined by the defendant. This reasoning and observation of the first Appellate Court was not in consonance with the legal requirement for the proof of the Will.

The Court allowed the appeal holding that first Appellate Court has committed serious error of law and further answered the question of law:

  • It is properly held by the trial Court that the Will was executed in the sound state of mind by the deceased Diwala Gausa.
  • Since the properties were held to be selfacquired properties of the deceased and ‘Will’ is found to be valid, the First Appellate Court has committed serious error of facts and law in passing decree in favour of plaintiff for 1/2 share in the suit properties.

[Sonaji Raghala Chaudhari v. Akha Diwala Chaudhari Thr’heirs, 2021 SCC OnLine Guj 990, decided on 02-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

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