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Judgment
LEAVE granted.
WE have heard learned counsel for the parties finally in this appeal.
The disputed Will Ex. D. 1 was held not legally proved by the Trial Court. But the Appellate Court on review of evidence look a contrary view and held that there cannot be any doubt in accepting this document as a genuine will. The High Court in second appeal without framing substantial question of law and treating the proceedings to be like a first appeal set aside the order of the Appellate Court and held the will not to be believable. The question framed for consideration in Second Appeal by the learned Judge read as under.
"The question that is involved in the second appeal is whether the Will executed by Babu Shetty in favour of Narayana of his 1/4th share under Ex. D. 1 can be believed or not."
SUCH a question is not a question of law, much less a substantial question of law.
THIS reasoning of the High Court cannot be sustained as it was deciding a second appeal under Section 100, Civil Procedure Code. The impugned order of the High Court is set aside and the Second Appeal is restored to its file with a request to re-decide the Second Appeal strictly within the parameters of the limited jurisdiction under Section 100, Civil Procedure Code.
WE express no opinion on the merits of the controversy between the parties.
The Civil Appeal is allowed.
NO costs.