Bombay High Court
Manoj Sukhdeorao Kukatkar vs Sau.Shakuntalabai Madhavrao ... on 7 July, 2016
Bench: Ravi K. Deshpande
1
sa386.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.386 of 2002
Manoj s/o Sukhdeorao Kukatkar,
Aged about 28 years,
Occupation - Agriculturist,
R/o At Post Ashti, Tq. Bhatkuli,
Distt. Amravati. ... Appellant/
Ori. Plff. on R.A.
Versus
Sau. Shakuntalabai w/o Madhavrao
Khapre,
Aged about 51 years,
Occupation - Household,
Resident of Kalyan Nagar,
Amravati, Tq. & Dist. Amravati. ... Respondent/
Ori. Deft. on R.A.
Shri R.S. Kurekar, Advocate for Appellant.
Shri R.D. Bhuibhar, Advocate for Respondent.
Coram : R.K. Deshpande, J.
Dated : 7th July, 2016
Oral Judgment :
1. This appeal is admitted on the substantial questions of law
framed this Court, while admitting similar Second Appeal No.388 of
sa386.02.odt
2002, which 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,
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
sa386.02.odt
for proof of Will, as are laid down under Section 66 of the Indian
Succession Act, 1925. 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.254 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 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
