Savitri Bai vs Om Prakash Gupta and others

B. Subhashan Reddy, J

This Letters Patent Appeal is directed against the concurrent judgment of the trial Court, which was affirmed by the learned single Judge and emanates from the decree for specific performance granted by the trial Court.

The appellant before us is the 2nd defendant in the suit, who claims to be the successor of the suit schedule property exclusively by virtue of Ex.B4 Will said to have been executed by her late mother - HariPyari Bai. The decree for specific performance has been granted against the 1st defendant - the brother of the appellant - to the extent of his share. But, the appellant is claiming the entire suit schedule property as her own on the basis of the Will mentioned supra. The trial Court dis-believed the Will and the appreciation of evidence and reasons assigned therefore are cogent and based on the material on record. Again, the same was re-appreciated by the learned single Judge. There is no point of law to be decided in this Letters Patent Appeal as the appeal rests solely on the question of fact, which cannot be disturbed or even gone into in the Letters Patent Appeal. In any event, this is not such an extra-ordinary case where the evidence has to be re-appreciated.

That apart, we have scanned through the evidence and appreciation of the same by both the learned single Judge and the trial Court revolving around Ex.B4. Ex.134 was said to have been executed on 19-4-1976 by Hari Pyari Bai, who died on 9-4-1997, i.e., one year after the execution of the alleged Will. It is so strange to note that the Will has not seen the light of the day of the whole of the year. Normally, it is expected of the legalee that coming to know of the Will, she has to keep the same in her custody. Even according to DW2, who is claiming to be the legalee of Ex.B4 Will, she came to know about the Will only when she came to attend the obsequies of her mother and that was kept in a box. Admittedly, her mother was not living with her, but was living with the 1st defendant. It is unbelievable that both defendants 1 and 2 were totally unaware of the execution of the Will. DW3 did not state to anybody about the execution of the Will and he states only for the first time in his evidence. His evidence discloses that he was totally unaware of the contents of the Willand that he just went and waited outside the office of the Advocate and then came out the typed Will and then he was taken to the Sub-Registrar''s Office, where the Will was registered. His evidence does not inspire confidence. It is also came out in his evidence that he is interested in DW2. There is yet another factor which might have been prompted to project the Will is to ward off the earlier agreement of sale executed by Hari Pyari Bai on 22-3-1975 in favour of Chandulal.

Mr. Mohd. Gulam Hussain, the learned Counsel for the appellant, has cited before us the decision rendered by the Supreme Court in Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, . But the facts of that case have got no bearing to the facts of this case. The evidence adduced by the appellant in the instant case in support of execution of Ex.B4 Will is deficient and is not of that degree of proof, which the Indian Evidence Act contemplates. In the circumstances, we affirm the judgments rendered by the trial Court and the learned single Judge.

Accordingly, this Letters Patent Appeal is dismissed. But, in the circumstances, without costs.