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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.