EULALIA SEQUEIRA NEE MENEZES Vs. CYRIL ANTHONY MENEZES

JUDGEMENT

(1.) Heard the learned counsel for appellant and learned counsel for respondents

(2.) This miscellaneous first appeal is filed under Sec. 289 of Indian Succession Act challenging the impugned order passed in Misc.case.No.16/1998 and prayed the Court to set aside the order dtd. 13/8/2007 passed by the Prl. District Judge, Dakshina Kannada, Mangalore and consequently allow the petition filed by the appellant under Sec. 263 of Indian Succession Act and grant such other relief as deem fit in the interest of justice and equity.

(3.) The grounds urged in the present appeal is that the very impugned order is erroneous, contrary to law and suffers from legal and factual infirmities. The Court below fails to appreciate the evidence and material on record in its proper perspective. The findings of the Court below are opposed to weight of evidence and probabilities of the case. The Court below seriously erred in coming to the conclusion that the appellant has been served notice personally in P and SC No.38/1983. The said finding is without any evidence. There is no documentary evidence on record to show the personal service of notice, neither the copy of the said notice nor the acknowledgment has been produced before the Court. The drawing of inference of personal service of notice on the basis of the entry in the order sheet is improper and unsustainable in law. It is also contended that the RW1 in his cross examination has admitted that there are no records to show the service of notice in P and SC proceedings. Hence, the impugned order is illegal and liable to be set aside.