Manoj Sukhdeorao Kukatkar vs Sau. Shakuntalabai W/O Madhavrao ...
2016 Latest Caselaw 3641 Bom

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                                                                     sa388.02.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR




                                                                            
                           Second Appeal No.388 of 2002




                                                    
           Manoj s/o Sukhdeorao Kukatkar,
           Aged about 28 years,
           Occupation - Agriculturist,




                                                   
           R/o At Post Ashti, Tq. Bhatkuli,
           Distt. Amravati.                               ... Appellant/
                                                          Ori. Plaintiff on R.A.




                                           
               Versus

                             
           1. Sau. Shakuntalabai w/o Madhavrao
              Khapre,
              Aged about 51 years,
                            
              Occupation - Household,
              Resident of Kalyan Nagar,
              Amravati, Tq. & Dist. Amravati.

           2. Sukhdeorao Babarao Kukatkar,
      


              Aged about 61 years,
              Occupation - Service.
   



           *3. Wasudeorao Babarao Kukatkar,
               Aged about 58 years,
               Occupation - Service.





               [*Second Appeal dismissed against 
               Respondent No.3 as per the order
               dated 7-1-2010 passed by 
               Registrar (J)]





               Respondent No.2 & 3 r/o Ashti,
               Tq. Bhatkuli, Distt. Amravati.             ... Respondents/
                                                               on R.A.


           Shri R.S. Kurekar, Advocate for Appellant.
           Shri R.D. Bhuibhar, Advocate for Respondent No.1.




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                                                                               sa388.02.odt


                       Coram : R.K. Deshpande, J.

Dated : 7th July, 2016

Oral Judgment :

1. The substantial questions of law framed in this appeal by

this Court, while admitting the appeal on 8-9-2005, are reproduced

below :

"(i)

Whether the Will deed (exh.24) could be discarded only on the ground that it was not registered as required U/S 17 of

the Registration Act?

(ii) Whether the appreciation of evidence once by the

Courts below is perverse?

2. Both the learned counsels agree with the position of law, as

indicated in the decision of the lower Appellate Court, that the Will

has to be discarded on the ground that it is not registered, as required

by Section 17 of the Registration Act, 1908, is contrary to the

well-settled principles of law. It is well-settled that the Will is not

required to be compulsorily registered. Hence, the lower Appellate

Court has committed an error of law in discarding the Will. Hence,

sa388.02.odt

the substantial question of law at serial no.(i) is answered

accordingly.

3. So far as the substantial question of law at serial no.(ii) is

concerned, with the assistance of the learned counsels appearing for

the parties, I have gone through the judgments rendered by both the

Courts below. The lower Appellate Court has failed to apply the tests

for proof of Will, as are laid down under Section 63 of the Indian

Succession Act, 1925 read with Section 68 of the Evidence Act. Both

the learned counsels could not point out the application of such tests

by the lower Appellate Court. In view of this, the judgment and

order passed by the lower Appellate Court is also vitiated on account

of non-application of mind to the aforesaid provisions along with the

the precedents. Thus, the substantial question of law at serial no.(ii)

is answered accordingly.

4. In the result, the second appeal is allowed. The judgment

and order dated 19-6-2002 passed by the lower Appellate Court in

Regular Civil Appeal No.291 of 1998, is hereby quashed and set

aside. The matter is remitted back to the lower Appellate Court to

decide it afresh in accordance with law and keeping in view the

observations made by this Court. The parties to appear before the

lower Appellate Court on 8-8-2016. No fresh notices shall be issued

sa388.02.odt

to the parties concerned. The lower Appellate Court to decide the

matter within a period of eight months from the date of first

appearance of the parties before it. No order as to costs.

JUDGE.

Lanjewar