{"id":102171,"date":"1995-09-25T00:00:00","date_gmt":"1995-09-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kashibai-wo-lachiram-anr-vs-parwatibai-wo-lachiram-ors-on-25-september-1995"},"modified":"2019-01-24T22:49:55","modified_gmt":"2019-01-24T17:19:55","slug":"kashibai-wo-lachiram-anr-vs-parwatibai-wo-lachiram-ors-on-25-september-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kashibai-wo-lachiram-anr-vs-parwatibai-wo-lachiram-ors-on-25-september-1995","title":{"rendered":"Kashibai W\/O Lachiram & Anr vs Parwatibai W\/O Lachiram & Ors on 25 September, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kashibai W\/O Lachiram & Anr vs Parwatibai W\/O Lachiram & Ors on 25 September, 1995<\/div>\n
Equivalent citations: 1995 SCC (6) 213, \t JT 1995 (7)\t 48<\/div>\n
Author: S N.P.<\/div>\n
Bench: Singh N.P. (J)<\/div>\n
           PETITIONER:\nKASHIBAI W\/O LACHIRAM & ANR.\n\n\tVs.\n\nRESPONDENT:\nPARWATIBAI W\/O LACHIRAM & ORS.\n\nDATE OF JUDGMENT25\/09\/1995\n\nBENCH:\nSINGH N.P. (J)\nBENCH:\nSINGH N.P. (J)\nFAIZAN UDDIN (J)\n\nCITATION:\n 1995 SCC  (6) 213\t  JT 1995 (7)\t 48\n 1995 SCALE  (5)615\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t\t  JUDGMENT
\nFaizan Uddin, J.\n<\/p>\n
1.   Leave granted.\n<\/p>\n
2.   This appeal  at the instance of the plaintiffs has been
\ndirected against  the judgment\tand  decree  dated  5.2.1992
\npassed by  the High  Court of  Bombay in  Second Appeal\t No.
\n682\/1981 reversing the judgment and decree of the two Courts
\nbelow passed  in favour of the plaintiffs-appellants herein.
\nThe appellants\therein shall  be described as plaintiffs and
\nthe respondents\t as defendants\thereinafter for\t the sake of
\nconvenience.\n<\/p>\n
3.   The following  family tree\t will indicate\tthe inter se
\nrelationship of\t the parties  to the  suit out\tof which the
\npresent appeal arises.\n<\/p>\n
\t\t      Lachi Ram (Dead)\n<\/p>\n
———————————————————–
\nKashi Bai  (first wife)\t\t   Parwati Bai (second wife)
\nPlaintiff\/appellant\t\t\tDefendant\/respondent
\nNo. 1\t\t\t\t\t   No. 1<\/span>
\nSunita Bai  (daughter\t\t    Meena Bai (daughter from
\nfrom Kashi  Bai)\t\t     Parvati Bai) Defendant\/
\nPlaintiff\/appellant No. 2\t  respondent No. 2<\/span>
\n\t\t\t\t  Purshottam (son of Meena
\n\t\t\t\t  Bai) Defendant\/respondent
\n\t\t\t\t  No. 3<\/span>\n<\/p>\n
4.   As would  be clear\t from the  family tree the plaintiff
\nNo. 1  and defendant  No. 1  are the  two widows of deceased
\nLachiram while\tthe plaintiff  No.  2  is  the\tdaughter  of
\nLachiram from  his first  wife. Kashi  Bai and the defendant
\nNo. 2  Meena Bai  is his  daughter  from  his  second  wife,
\nParvati Bai.  The defendant  No. 3, Purshottam is the son of
\ndefendant No.  2. Meena\t and grand-son of late Lachiram. The
\nplaintiffs brought  this suit  for  separate  possession  by
\npartition of  a double\tstorey house,  open  plot  and\tsome
\nagricultural lands  as described  in the plaint, situated at
\nvillage Eklara,\t Taluka Mukhed.\t The plaintiffs claimed half
\nshare in  the suit  properties\tbeing  the  legal  heirs  of
\ndeceased Lachiram.  It was  alleged by\tthe plaintiffs\tthat
\nLachiram during\t his life  time had  given survey Nos.171\/1,
\n160 and 159\/3 to the plaintiff No. 1 towards her maintenance
\nin addition  to a  portion of  suit  house  and\t placed\t the
\nplaintiff No.  1 in  possession thereof\t and she became full
\nowner of  the said land after the Hindu Succession Act, 1956
\ncame into  force. It  was alleged  by  the  plaintiffs\tthat
\ndeceased  Lachiram  during  his\t life  time  challenged\t the
\nplaintiffs ownership in respect of survey Nos.171\/1, 160 and
\n159\/3 by  filing civil suit No. 138\/1969 which was dismissed
\non 28.12.1970.\tThe said judgment was confirmed in first and
\nsecond appeals\tand thus  the plaintiffs became the absolute
\nowner of the same.\n<\/p>\n
5.   Further case of the plaintiffs was that during the life
\ntime of\t Lachiram survey No. 111\/2 and survey No. 129\/7 were
\npurchased by  Lachiram in  the name  of defendant  No. 1 and
\nthat survey No. 128\/A was received by defendant No. 1 during
\nthe pendency  of the  suit as  a result\t of  a\tdecision  of
\npending suit  between deceased\tLachiram and  one Naga\tand,
\ntherefore, the\tsame were  also liable\tto partition and the
\nplaintiffs were\t entitled to  half share by partition in the
\nsaid lands  also. It  was averred by the plaintiffs that the
\ndefendants  were   requested  for   separate  possession  by
\npartition to  the extent  of their  half share\tin the\tsuit
\nproperty but  the defendants were not agreeable for the same
\nwhich led to the filing of the suit for partition.\n<\/p>\n
6.   The defendants  contested the  suit. In  their  written
\nstatement they\tdenied the  plaintiffs claim  and  took\t the
\nstand that  deceased Lachiram  at the  time of his death was
\nthe owner  only of  survey Nos.\t 110\/1, 218 and 149\/1 It was
\nalleged that  the defendant  No.  1  had  herself  purchased
\nsurvey Nos.  127, 129\/1\t and 120\/2  from one  Iranna on 21st
\nMarch 1354  fasli (1945\t A.D.) by a registered sale deed and
\nshe was\t the exclusive owner with possession thereof and the
\nplaintiffs had\tno right over the same and those lands could
\nnot be\tthe subject  matter of the partition. The defendants
\nthough admitted the relationship but denied the claim of the
\nplaintiffs for\tpartition on  the ground  that the defandant
\nNo. 3,\tPurshottam son\tof Meena Bai was adopted by deceased
\nLachiram  under\t  the  registered  Deed\t of  Adoption  dated
\n29.4.1970 and  that Lachiram  had also\texecuted the Deed of
\nWill on\t the same  date i.e.  dated 29.4.1970  in favour  of
\nPurshottam, defendant  No. 3 becueathing the suit properties
\nto the\tdefendant No.  3 and  as such the plaintiffs have no
\nright over any of the suit properties. With regard to survey
\nNos. 172\/1,  160 and  159\/3 and the portion of the house the
\ndefendants took\t the plea  that the  same were\tgiven to the
\nplaintiffs for\ttheir maintenance  and, therefore, they were
\nnot entitled  to claim\tany share  in the  suit\t properties.
\nRegarding the  decision in  Civil Suit\tNo. 138\t of 1969 the
\ndefendants contended  that the\tsame was not binding on them
\nas on  the death of Lachiram, the defendant No. 3 Purshottam
\nhad become the owner of those properties.\n<\/p>\n
7.   After appreciation of evidence on record adduced by the
\nparties the  trial Court  decreed the  plaintiffs  suit\t for
\nseparate possession  by partition.  The trial Court recorded
\nthe finding  that the defendants had failed to establish the
\nadoption of Purshottam by late Lachiram and the execution of
\nwill in\t his favour  in respect\t of the\t suit properties and
\nthat Lachiram was the owner of all the properties in suit at
\nthe time  of his  death in which the plaintiffs are entitled
\nto half\t share. The  trial Court  also recorded\t the finding
\nthat the plaintiffs were the absolute owner of lands bearing
\nsurvey Nos.  172\/1, 160\t and 159\/3  of village Eklara. These
\nfindings were  further affirmed by the first Appellate Court
\nafter  evaluating  the\tevidence,  the\tHigh  Court  took  a
\ncontrary view  and reversed the findings recorded by the two
\nCourts. According  to the  High\t Court\tthe  defendants\t had
\nproved the execution of Deed of Adoption and Deed of will in
\naccordance with\t law by\t reason of which the plaintiffs were
\nheld not  entitled to claim any share in the suit properties
\nand, therefore, after setting aside the judgments and degree
\nof the two Courts below dismissed the suit.\n<\/p>\n
8.   Learned   counsel\t  for\tthe    plaintiffs-appellants
\nstrenuously urged  before us  that the\tquestion of proof of
\nthe Deed  of Adoption and the Deed of will is a pure finding
\nof fact\t and, therefore, the High Court was not justified in
\ninterfering with  the findings of fact arrived at by the two
\nCourts below,  in exercise of its power under Section 100 of
\nthe Code  of Civil Procedure. It was submitted that the High
\nCourt was not justified in substituting its own views on re-
\nappraisal of  the evidence  on record  for that\t of the\t two
\nlower Courts and that the conclusions arrived at by the High
\nCourt  are  based  on  conjectures  and\t surmises.  It\twas,
\ntherefore, submitted  that the impugned judgment of the High
\nCourt should be set aside.\n<\/p>\n
9.   It is  no doubt  true that\t after analysing the parties
\nevidence minutely  the trial Court took a definite view that
\nthe defendants\thad failed  to establish  that the plaintiff
\nNo. 1,\tdefendant No.  1 and deceased Lachiram had taken the
\ndefendant No.  3. Purshottam  in adoption.  The trial  Court
\nalso recorded the finding that the plaintiff No. 1 was not a
\nparty to  the Deed of Adoption as the plaintiff No. 1 in her
\nevidence has  specifically stated  that she did not sign the
\nDeed of\t Adoption nor  she consented  for such\tadoption  of
\nPurshottam and\tfor that  reason she  did not participate in
\nany adoption  proceedings. On these findings the trial Court
\ntook the  view that  the alleged  adoption being against the
\nconsent of  Kashi Bai  the plaintiff No. 1, it was not valid
\nby virtue  of the  provisions of  Section  7  of  the  Hindu
\nAdoptions and  Maintenance Act,\t 1956. Section\t7 of the Act
\nprovides that any male Hindu who is of sound mind and is not
\na minor\t has the  capacity to  take a  son or  a daughter in
\nadoption. It provides that if he has a wife living, he shall
\nnot adopt  except with\tthe consent  of\t his  wife.  In\t the
\npresent case  as seen  from the\t evidence discussed  by\t the
\ntrial Court  it is  abundantly clear  that plaintiff  No.  1
\nKashi Bai  the first  wife of deceased Lachiram had not only
\ndeclined to  participate in the alleged adoption proceedings
\nbut also declined to give consent for the said adoption and,
\ntherefore, the\tplea of\t alleged adoption  advanced  by\t the
\ndefendants was\tclearly hit  by the  provisions of Section 7
\nand the adoption can not be said to be a valid adoption.\n<\/p>\n
10.  This brings  us to\t the question of the will alleged to
\nhave been  executed by\tdeceased Lachiram  in favour  of his
\ngrand-son Purshottam,  the defendant  No. 3.  Section 68  of
\nEvidence Act  relates to  the proof of execution of document
\nrequired by  law to  be attested. Admittedly, a Deed of will
\nis one of such documents which necessarily require by law to
\nbe attested.  Section 68  of the  Evidence Act\tcontemplates
\nthat if\t a document  is required  by law  to be attested, it
\nshall not be used as evidence until one attesting witness at
\nleast has  been\t called\t for  the  purpose  of\tproving\t its
\nexecution, if  there be\t an  attesting\twitness\t alive,\t and
\nsubject to  the process\t of the\t Court and capable of giving
\nevidence.  A   reading\tof   Section  68   will\t show\tthat
\n“attestation” and  “execution” are  two different  acts\t one
\nfollowing the  other. There  can be  no valid execution of a
\ndocument which\tunder the  law is  required to\tbe  attested
\nwithout\t the  proof  of\t its  due  attestation\tand  if\t due
\nattestation is\talso not proved, the fact of execution is of
\nno avail. Section 63 of the Indian Succession Act, 1925 also
\nlays down  certain rules  with regard  to the  execution  of
\nunprivileged wills.  Clause (C)\t of Section 63 provides that
\nthe will  shall be  attested by\t two or more witnesses, each
\none of\twhom has seen the testator sign or affix his mark to
\nthe will or has seen some other person sign the will, in the
\npresence and  by the  direction\t of  the  testator,  or\t has
\nreceived from the testator a personal acknowledgement of his
\nsignature or mark or the signature of such other person; and
\neach of\t the witnesses\tshould sign the will in the presence
\nof the\ttestator, but  it shall\t not be\t necessary that more
\nthan one  witness  be  present\tat  the\t same  time  and  no
\nparticular form of attestation shall be necessary.\n<\/p>\n
11.  Here we  may also\ttake note  of the  definition of the
\nexpression “attested”  as contained  in\t Section  3  of\t the
\nTransfer of Property Act which reads as under:-\n<\/p>\n
     “attested”,   in\t relation    to\t   an
\n     instrument, means\tand shall  be  deemed
\n     always to\thave meant attested by two or
\n     more witnesses each of whom has seen the
\n     executant sign  or affix his mark to the
\n     instrument,  or   has  seen  some\tother
\n     person  sign   the\t instrument   in  the
\n     presence and  by the  direction  of  the
\n     executant,\t or  has  received  from  the
\n     executant a  personal acknowledgement of
\n     his  signature   or  mark,\t  or  of  the
\n     signature of such other person, and each
\n     of whom has signed the instrument in the
\n     presence of  the executant\t but it shall
\n     not be  necessary that  more than one of
\n     such witnesses  shall have\t been present
\n     at the same time, and no particular form
\n     of attestation shall be necessary.”\n<\/p>\n
Having regard to the afore-mentioned definition an attesting
\nwitness is a person who in the presence of an executant of a
\ndocument puts his signature or mark after he has either seen
\nthe  executant\thimself\t or  someone  on  direction  of\t the
\nexecutant has  put his\tsignature or affixed his mark on the
\ndocument so required to be attested or after he has received
\nfrom  the   executant  a  personal  acknowledgement  of\t his
\nsignature or  mark or  the signature  or mark  of such other
\nperson. In  the present\t case the  trial Court after a close
\nscrutiny and  analysis of  the evidence of the defendant No.
\n1, Smt.\t Parvati Bai,  Vir Bhadra.  Sheikh Nabi. Shivraj and
\nGyanoba Patil  who are\twitnesses to  the will\trecorded the
\nfinding that  none of  them deposed that Lachiram had signed
\nthe said  will before them and they had attested it. None of
\nthem except  Sheikh Nabi  even deposed\tas to  when the talk
\nabout the  execution of\t will was  held. The  witness Sheikh
\nNabi, however,\tdeposed that  the talk\tabout the  will also
\ntook place  at the  time of the talk about the adoption. But
\nthis witness  too did  not depose that deceased Lachiram had
\nsigned the  alleged will  in his presence. In the absence of
\nsuch evidence  it is  difficult to accept that the execution
\nof the\talleged will  was proved  in accordance\t with law as
\nrequired by Section 68 of the Evidence Act read with Section
\n63 of  the Indian  Succession  Act  and\t Section  3  of\t the
\nTransfer of  Property Act. It may be true as observed by the
\nHigh Court  that law does not emphasis that the witness must
\nuse the\t language of  the Section  to  prove  the  requisite
\nmerits thereof\tbut it\tis also\t not permissible  to  assume
\nsomething which\t is  required  by  law\tto  be\tspecifically
\nproved. The  High Court\t simply assumed\t that Lachiram\tmust
\nhave put  his signature\t on the will Deed in the presence of
\nthe attesting witness Sheikh Nabi simply because the Deed of
\nAdoption is admitted by the witness to have been executed on
\nthe same  day. The  High Court\tcommitted a serious error in
\nmaking the  observations that  broad  parameters  of  Nabi’s
\nevidence would\tshow that  Lachiram executed the will in his
\npresence,  that\t he  signed  the  will\tbeing  part  of\t the
\nexecution of  the testament and this evidence in its correct
\nbackground would  go to\t show that  what was  required under
\nSection 63  has been  carried out  in the  execution of\t the
\nwill. With  respect to\tthe High Court we may say that these
\nfindings of  the High  Court are clearly based on assumption
\nand surmises and, totally against the weight of the evidence
\non record.  The trial Court on a close and thorough analysis
\nof the\tentire evidence came to a proper conclusion that the
\nwill has  not been  proved  in\taccordance  with  law  which
\nfinding has  been further  affirmed by\tthe lower  appellate
\nCourt after  an independent  reappraisal of  entire evidence
\nwith which  we find  ourselves in  agreement  as  there\t was
\nhardly any  scope or  a valid  reason for  the High Court to
\ninterfere with.\n<\/p>\n
12.  Further, it  may not  be out  of place  to mention that
\nSub-section  (1)  of  Section  100  of\tthe  Code  of  Civil
\nProcedure explicitly  provides that  an appeal\tshall lie to
\nthe High  Court from  every decree  passed in  appeal by any
\nCourt subordinate  to the  High Court,\tif the High Court is
\nsatisfied that\tthe case  involves a substantial question of
\nlaw. Sub-section  (4) of  Section 100 provides that when the
\nHigh Court  is satisfied  that a substantial question of law
\nis involved  in any  case it  shall formulate that question.
\nBut surprisingly enough the High Court seems to have ignored
\nthese provisions  and proposed\tto reappreciate the evidence
\nand  interfere\twith  the  findings  of\t fact  without\teven
\nformulating any\t question of law. It has been the consistent
\nview  of  this\tCourt  that  there  is\tno  jurisdiction  to
\nentertain a second appeal on the ground of erroneous finding
\nof fact,  based on  appreciation of  the relevant  evidence.
\nThere is  a catena  of decisions  in support  of this  view.
\nHaving regard  to all  the facts  and circumstances  of\t the
\npresent case  discussed above,\twe are\tsatisfied that there
\nwas no\tjustification for  the High  Court to interfere with
\nthe  well   reasoned  findings\tof  the\t two  Courts  below.
\nConsequently, this appeal must succeed.\n<\/p>\n
13.  In the  result the\t appeal is allowed, the judgment and
\ndecree passed  by the  High Court  are set aside and that of
\nthe trial Court is restored. We make no order as to costs of
\nthis  appeal.  The  respondents\t shall,\t however,  bear\t the
\nplaintiffs cost\t incurred  in  trial  Court  and  the  first
\nappellate Court.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kashibai W\/O Lachiram & Anr vs Parwatibai W\/O Lachiram & Ors on 25 September, 1995 Equivalent citations: 1995 SCC (6) 213, JT 1995 (7) 48 Author: S N.P. Bench: Singh N.P. (J) PETITIONER: KASHIBAI W\/O LACHIRAM & ANR. Vs. RESPONDENT: PARWATIBAI W\/O LACHIRAM & ORS. DATE OF JUDGMENT25\/09\/1995 BENCH: SINGH N.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-102171","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKashibai W\/O Lachiram & Anr vs Parwatibai W\/O Lachiram & Ors on 25 September, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kashibai-wo-lachiram-anr-vs-parwatibai-wo-lachiram-ors-on-25-september-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kashibai W\/O Lachiram & Anr vs Parwatibai W\/O Lachiram & Ors on 25 September, 1995 - 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