Ram Naresh Vs.
Ramavtar & Ors. [2008] INSC 1281 (1 August 2008)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO. 4768 OF 2008 [Arising out of SLP(C) No.
15483/2007] RAM NARESH ... APPELLANT(S) :VERSUS:
ORDER Leave granted.
Heard the learned counsel
for the parties.
This appeal is
directed against the judgment and order dated 5.7.2007 passed by learned Single
Judge of the High Court of Madhya Pradesh at Jabalpur in Second Appeal No.
126/1987 allowing the second appeal filed by the respondents herein from a
judgment and decree dated 2.1.1987 passed by the District Judge, Panna,
allowing an appeal preferred by the appellant from a judgment and decree passed
by the learned Civil Judge, Class II, Panna, dated 3.5.1983.
In view of the order
proposed to be passed by us, it is not necessary to state the fact of the
matter in details. Suffice it to say that the contention of the parties centred
round proof of execution of a Will by one Mst. Katra Wali, on or about
31.10.1972.
-2- A contention has
also been raised by the respondents that the appellant had committed fraud on
the testatrix. Opining that the said Will is an outcome of the fraud on the
part of the appellant, the said suit was dismissed by the learned Trial Judge.
However, the first appeal preferred thereagainst was allowed.
The High Court while
entertaining the second appeal at the instance of the respondents, formulated
the following substantial question of law:
"Whether the
lower appellant Court was justified in law in reversing the judgment and decree
of the trial Court."
The High Court in its
judgment impugned before us, inter alia, arrived at the following findings:
"Nowhere in
their evidence it has come that the testator put her thumb impression in their
presence and they put their signature and thumb impression in presence of the
testator."
Having heard the
learned counsel for the parties, we are of the opinion that, apart from the
fact that the purported substantial question of law framed does not satisfy the
test laid down under Section 100 of the Code of Civil Procedure, the High Court
appears to have committed a manifest error in its approach in entering into the
merit of the matter.
-3- Learned counsel
appearing on behalf of the respondents, when questioned, submitted that a large
number of substantial questions of law had been raised before the High Court
which, however, had not been formulated.
Be that as it may,
in view of our finding aforementioned that the question formulated ex facie was
not a substantial question of law within the meaning of the provisions of
sub-section (4) of Section 100 of the Code of Civil Procedure, the impugned
judgment cannot be sustained. It is set aside accordingly and the matter is
remitted to the High Court for consideration of the matter afresh.
The High Court may
formulate such substantial question of law as in its opinion arises in the
matter.
The High Court is
requested to consider the desirability of hearing out the matter as
expeditiously as possible.
The appeal is
allowed. No costs.
..........................J
(S.B. SINHA)
..........................J
(CYRIAC JOSEPH)
NEW
DELHI, AUGUST 1, 2008.
Back
Pages: 1 2 3
