LexGOPAL SWAROOP versus KRISHNA MURARI MANGAL & ORS.
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[2010] 14 (ADDL.) S.C.R. 211 GOPAL SWAROOP v. KRISHNA MURARI MANGAL & ORS. (Civil Appeal No. 6801 of 2003) NOVEMBER 25, 2010 [MARKANDEY KAT JU AND T.S. THAKUR, JJ.] A B Succession Act, 1925; s. 63 - Execution of Will - Essential requirements to prove - Discussed - In the instant case, deposition of the attesting witness proved that the C testator had executed Will in favour of the propounder and had signed and affixed his signature in his presence - The signature of the testator was appropriately placed in the Will - Deposition of attesting witness was that he a/ongwith the other attesting witness was present at the time the testator D affixed his signature on the Will and the two witnesses signed the Will in the presence of the testator:-Requirements of s. 63 were fulfilled - Trial cowt and Single Judge of High Court had concurrently held that the execution of Will was satisfactorily proved - Division Bench of High Court erred in reversing that E finding - Evidence Act, 1872 - s. 68 - Will - Appeal. Evidence Act, 1872: s. 68 - Held: Where the document sought to be proved is required to be attested, the same cannot be let in evidence unless at/east one of the attesting witnesses has been called for proving the attestations, if any F ~ such attesting witness is alive and capable of giving evidence - Deeds and documents - Witness - Attesting witness - Succession Act, 1925 - s. 63. Appeal: Letters Patent appeal - Power of Lett~rs Patent G Bench hearing a second appeal to interfere with the order passed by single judge - Held: Letters Patent Bench will be slow in interfering with the concurrent finding of fact recorded by trial court and single judge in the first appeal - However, 211 H 212 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. A court may interfere where the finding is demonstrably erroneous, irrational or perverse. Respondent no.1 filed a suit for partition of the joint family property. Defendant no.1, the father of the plaintiff was the 'karta' of the joint family. He died during the 8 pendency of the suit. The appellant set up a Will purportedly executed by defendant no.1 whereby he devolved his share upon the appellant. The suit was decreed by the trial court. The trial court also found that the Will set up by the appellant was duly proved and that C in terms thereof the property left by defendant no.1 would devolve upon the appellant. The Single Judge of the High Court affirmed the findings of the trial court. Respondent no.1 filed Letters D Patent Appeal. The Division Bench of the High Court partly allowed the appeal and held that the execution of the Will was not proved in as much as the solitary witness DW-2 did not prove that the testator had signed the Will in the presence of the second witness and that the E second witness had signed the Will as the attesting witness. The instant appeal was filed challenging the order of High Court. Allowing the appeal, the Court F HELD: 1. In a Letters Patent Appeal aris1:1g out of an order passed by a Single Judge, the Division Bench of the High Court hearing a civil second appeal would not re-appreciate the evidence to record a finding of fact. That is because the Single Judge cannot himself do so in the G light of the limitations placed upon the court by Section 100, C.P.C. That may not, however, be true when the Single Judge passes an order in a first appeal filed before him. Even when the finding of fact recorded by the Single Judge may affirm the finding recorded by the trial court, H GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 213 ORS. there is no express bar to the examination of any such A finding by the Division Bench of the High Court hearing the Letters Patent Appeal. Even in the absence of any legal bar to the examination of a finding of fact, a Letters Patent Bench will be slow in interfering with the concurrent finding of fact recorded by the trial court and B the Single Judge in the first appeal. The court may interfere where the finding is demonstrably erroneous in that it is either irrational a perverse being without any evidence. The jurisdiction exercised by the court being discretionary ought to be exercised along judicial lines. c [Para 9) [220-F-H; 221-A] Smt. Asha Devi v. Dukhi Sao and Anr. 197 4 (2) SCC 492; B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. (2006) 13 sec 449 • relied on. D 2.1. The trial court and the Single Judge of the High Court ha
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