1 (SA 336 of 2009 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 336 OF 2009 WITH CIVIL APPLICATION NO. 1100 OF 2009 IN SECOND APPEAL NO. 336 OF 2009 Mrs.Krishni Arvind Undire ...Appellant (Org.Defendant No.1) Vs. Smt.Kashibai Maya Perekar & Ors. ...Respondents (Org.Plaintiff and Org.Defendant Nos.2 to 12) ----- Mr.Y.S. Bhate for Appellant Mr.Rajaesh More for Respondent No.1 ----- CORAM: V.M. KANADE J. DATED: 4TH FEBRUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellant and the learned counsel appearing on behalf of the Respondent No.1. 2. The Appellant is the Original Defendant No.1 and the Respondent No.1 is the Original Plaintiff (hereinafter for the sake of convenience the parties shall be referred to as“the Plaintiff and the Defendant No.1”). The Original 2 (SA 336 of 2009 ) Plaintiff filed a suit for declaration that she is the owner of the CTS No. 270-B and House No.230 standing on the said CTS No. and for an injunction, restraining the Defendants from interfering with her possession. The Plaintiff relied on a Will, which was executed in her favour by the father of the Defendant No.1. The Trial Court dismissed the suit of the Plaintiff and held that the execution of the Will was not proved. The Trial Court relied on the various circumstances for coming to the said conclusion. The Plaintiff preferred an appeal against the said order. The Lower Appellate Court after appreciating the evidence which was brought on record by the Plaintiff, came to the conclusion that the Plaintiff was entitled for ½ portion of the said property on which the house was situated and held that though the Will had been proved, the Plaintiff was entitled for 50% share in the said property. Being aggrieved by the said judgment and order of the Lower Court, the Defendant No.1 has preferred this Second Appeal. The Plaintiff did not challenge the order of the Lower Appellate Court and accepted the finding regarding her share in the said property. 3. Shri Bhate, the learned counsel appearing on behalf 3 (SA 336 of 2009 ) of the Appellant invited my attention to the grounds Nos. (a) to (k). He led particularly emphasis on the grounds (j), (h) and (i). 4. In my view so far as the grounds (a) to (f) and (j) to (u) are concerned, it cannot be considered to be substantial question of law since in these grounds, the Appellant has challenged the finding of the Lower Appellate Court and has urged that the said finding is incorrect. So far as grounds (g), (h) and (i) are concerned, they read as under: “(g) Whether the Lower Appellate Court was justified in presuming a purported title of ownership in favour of the Respondent No.1 herein (Original Plaintiff) in respect of the Suit Property, bearing C.T.S. NO. 270-B, admeasuring 102.08 sq.mtrs. And the Structure i.e. House Property standing thereon, bearing Municipal House NO. 330 on the basis of the purported Will, dated 30th April, 1992 alleged to have been executed by the deceased Maya Goma Perekar in her 4 (SA 336 of 2009 ) favour without obtaining Probate of the said purported Will, dated 30th April,1992? (h) Whether the Lower Appellate Court was justified in not appreciating the fact that the Court of the Joint Civil Judge, Junior Division at Alibag was not entitled to entertain and try the Regular Civil Suit No. 138 of 2000 filed by the Respondent No.1 (Original Plaintiff) against the Appellant and the Respondent Nos.2 to 12 herein as the said Suit was for declaration and permanent injunction without there being a Probate of the said purported Will, dated 30th April, 1992? (i) Whether the Lower Appellate Court was justified in sifting through the evidence of the witnesses, viz. the Respondent No.1 (Original Plaintiff), Witness to the purported Will, dated 30-04-1992, viz. Chintaman Laxman Bhagat and the purported Will, dated 30-04-192 itself, in piecemeal so as to substantiate the reasoning arrived at by the Lower 5 (SA 336 of 2009 ) Appellate Court in holding that the purported Will, dated 30-04-1992 was properly executed by the deceased Maya Goma Perekar without reading the said evidence in the entirety i.e. the Cross Examination of the witness, Chintaman Laxman Bhagat and other corroborative piece of evidence produced by the Appellant to destroy the theory of execution of the purported Will, dated 30- 04-1992 by the deceased Maya Goma Perekar without any undue influence of the Repsondent No.1, and which has been upheld by the Trial Court with proper reasoning?” He then submitted that without obtaining probate from the District Court, the Plaintiff could not have filed the suit before the Civil Judge, Junior Division. He submitted that Civil Judge, Junior Division did not have jurisdiction to try and decide the said suit. Secondly, it was submitted that since probate was not obtained from the District Court, the learned judge could not have gone into question of genuineness of the said Will. Thirdly, it 6 (SA 336 of 2009 ) was submitted that the finding recorded by the Lower Appellate Court was perverse. Firstly because, the Lower Appellate Court had held that the Plaintiff had 50% share in the said property. He submitted that such a finding could not be given in respect of the share of the Plaintiff in the property by reading the Will as a whole. Lastly, it was submitted that the finding of the Lower Appellate Court regarding the genuineness of the Will was perverse since it did not take into consideration the reasoning given by the Trial Court. The learned counsel for the Appellant has invited my attention to the finding of the Lower Appellate Court as also the finding of the Trial Court. 5. It is not be possible to accept the submissions made by the learned counsel appearing on behalf of the Appellant. So far as the first submission of the Appellant is concerned that without obtaining a probate, no reliance could be placed on a registered Will executed by the deceased, he was unable to point out any provision of law which creates a bare on relying on a registered Will in a suit for declaration filed by the Plaintiff. The said submission, therefore, cannot be accepted. So far as the finding in respect of the genuineness of the Will is 7 (SA 336 of 2009 ) concerned, the Lower Appellate Court has given cogent reasons for accepting the execution of the Will by the deceased. The Plaintiff examined herself and one attesting witness. The Will was also registered. The Lower Appellate Court has observed that the Plaintiff was residing with the deceased for quite some time and though he was paralytic patient, he was not bed-ridden and this was evident from the admission by the Defendant No.1’s witness – Chintaman Laxman Bhagat, who admitted in his cross examination that though the deceased was paralytic, he was in a position to move around and was not bed-ridden. The Lower Appellate Court has taken into consideration various circumstances and has held that merely because the age of the deceased is mentioned as 65 years instead of 85 years and secondly, merely because the name of daughter of his second wife was not mentioned in the Will, that by itself could not be a ground for discarding the Will. It is a well settled position in law that the First Appellate Court has every right to independently re- appreciate the evidence on record and come to its own conclusion. Whereas, in second appeal, this Court cannot re-appreciate the evidence and substitute its own view to the view taken by the Lower Court. From the reasoning 8 (SA 336 of 2009 ) given by the Lower Appellate Court, it can be seen that it did not accept the reasoning given by the Trial Court for not accepting the Will. The submissions made by the learned counsel for the Appellant, therefore, cannot be accepted. So far as the third condition is concerned viz. that the Lower Appellate Court could not have given a finding that the Plaintiff had 50% in the property. It was sought to be urged that if the Lower Appellate Court had accepted the genuineness of the Will, then as a natural corollary, the Court should have held that the Plaintiff was owner of the entire property. In my view, the said submission, also cannot be accepted. The finding recorded by the Lower Appellate Court about 50% share of the Plaintiff, has been accepted by the Plaintiff and that finding is not challenged. That being the position, the Appellant cannot challenge the said finding of the Lower Appellate Court. In my view, therefore, no substantial question of law is raised in this Second Appeal. 6. The Apex Court in a recent judgment in the case of – Koppisetty Venkat Ratnam, Appellant vs. Pamarti Venkayamma, Respondent [(2009) 4 Supreme Court Cases, 244] has deprecated the practice of interference of 9 (SA 336 of 2009 ) the High Court interfering with the finding of concurrent finding of fact. The Apex Court after taking into consideration the legislative background in the Fifty- fourth Report of the Law Commissioner of India in 1973, as well as the historical perspective in respect of the appellate jurisdiction which has to be exercised by the High Court, the accumulation of arrears of Second Appeals in the High Court and the rationale behind permitting the Second Appeal on the question of law and thereafter taken into consideration the leading cases decided after the 1976 Amendment, has observed in paragraph 17 and 18 as under- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. 18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC . Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial 10 (SA 336 of 2009 ) questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” The Apex Court,therefore, has deprecated the practice of the High Court of re-appreciating the evidence on record and substituting the finding of the Lower Courts by its own view after re-appreciation of evidence. The said observations have been made after taking into consideration the report of the Law Commission. The accumulation of arrears in the second appeal in this Court, various judgments have been by the Supreme Court on this aspect from time to time. Taking into consideration the said view taken by the Apex Court, therefore, in my view, no case is made out by the Appellant for interfering with the concurrent finding given by the Courts below. Hence, Second Appeal is dismissed and disposed of. 7. Civil Application does not survive. Interim order is vacated and civil application is also disposed of. 8. At this stage, the learned counsel for the Appellant 11 (SA 336 of 2009 ) submits that order of status quo may be continued for a period of eight weeks. Request for continuation of stay is declined. (V.M. KANADE J.)