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Will: Suspicious circumstances in execution of will – Bequest made in the name of testator’s son to the exclusion of testator’s daughters – Testator’s son lived for eleven years after the death of their father – Petition seeking Letters of Administration filed fifteen years after the death of the testator by wife of testator’s son – Daughters of testator defendants sought for dismissal of the petition on the ground that the will was fabricated – Held: It is highly improbable that the only son of the testator who was a practicing advocate and on whom the bequest of the house was made, was unaware of the execution of the will by his father – It is unnatural that the father would not have disclosed to his only son about the bequest of the property and had also not taken his son’s assistance in the drafting as well as execution of the will – The testator had suffered a paralytic stroke which had affected his speech, mobility of his right arm and right leg and he was bedridden for a period of ten months prior to his death – Taking these circumstances into consideration, a doubt is created as to whether the testator was in a sound and disposing state of mind at the time of making of the testament which was fifteen days prior to his death – The said suspicion in the mind of the Court has not been removed by the propounder of the will i.e. first plaintiff by producing any contra medical evidence or the evidence of the doctor who was treating the testator prior to his death – Testator had himself stated in the alleged will that he was sick and getting weak even then he is stated to have “written” the will himself which is not believable – s.63 of the Succession Act, 1925 categorically states that the testator has to sign on the will and the signature of the testator must be such that it would “intend” thereby to give effect to the writing of a will – Hence, the genuineness of the will must be proved by proving the intention of the testator to make the testament and for that, all steps which are required to be taken for making a valid testament must be proved by placing concrete evidence before the Court – There is no evidence as to whom the testator gave instructions to write the will – The scribe was also not examined – In order to prove the execution of the document such as a testament, at least one of the attesting witnesses who had attested the same must be called to give evidence for the purpose of proof of its execution – One attestor had died – The second attestor, PW2 had given his evidence – PW2 deposed that the will could not be registered as the testator was unwell and in fact, he was bedridden – His deposition was rather fatal to the case of the beneficiary of the Will – Trial Court had also not believed the evidence of PW2 – Respondents-plaintiffs were not successful in proving the validity of the will in accordance with law inasmuch as the suspicious circumstances surrounding the very execution of the will were not cleared by any cogent evidence, rather, the genuineness of will remained in doubt – The alleged Will not being a valid document in the eye of law, no Letters of Administration can be granted to the respondents-plaintiffs – Succession Act, 1925 – s.63. Judgment/Order: Reasoned order – Duty of Appellate court while affirming, modifying or reversing the judgment of lower court – Held: The Appellate Court has jurisdiction to reverse, affirm or modify the findings and the judgment of the Trial Court – However, while reversing or modifying the judgment of a Trial Court, it is the duty of the Appellate Court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the Appellate Court – No doubt, when the Appellate Court affirms the judgment of a Trial Court, the reasoning need not to be elaborate although re- appreciation of the evidence and reconsideration of the judgment of the Trial Court are necessary concomitants – But while reversing a judgment of a Trial Court, the Appellate Court must be more conscious of its duty in assigning the reasons for doing so – In the instant case, High Court has dealt with the judgment of the Trial Judge in a short cut method, bereft of all reasoning while reversing the judgment of the Trial Court both on facts as well as law. Judgment/Order: Duty of Appellate court, while reversing the judgment of lower court – Held: While writing a judgment of reversal, an Appellate Court must remain conscious of two principles – Firstly, the findings of facts based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment – If, on an appraisal of the evidence, it is found that the judgment of the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact but by assigning cogent reasons for doing so – Otherwise, the findings of the Trial Court should not be interfered with lightly on a question of fact – Secondly, while reversing a finding of fact, it is necessary that the Appellate Court assigns its own reasons for doing so – This is especially so in case there are further appeals under s.100, CPC, as the first Appellate Court is the final court of facts and the said findings are immune from challenge in a second appeal. Appeal: Right to file appeal – Held: Right to appeal is a creature of statute – The right to file an appeal by an unsuccessful party assailing the judgment of the Original Court is a valuable right and hence a duty is cast on the Appellate Court to adjudicate a first appeal both on questions of fact and applicable law – Hence, the re-appreciation of evidence in light of the contentions raised by the respective parties and judicial precedent and the law applicable to the case have to be conscientiously dealt with. |
