RAMESH Vs. VED VRAT

JUDGEMENT

(1.) THIS appeal was argued on 22.9.1998 and judgment was reserved. The matter was listed in Court again today for clarifications from the counsel for the reason that the judgment passed by the learned District Judge has not determined the questions of fact raised before it by assigning cogent reasons. For this purpose, the matter was again listed for rehearing.

(2.) THE appeal is not being disposed of on merits, but some facts are being noticed. The respondent, who was the plaintiff before the learned trial Court prayed for a decree of declaration for the suit land on the basis that a Will executed by the deceased in favour of the defendants No. 3 to 8 before the trial Court is illegal, null and void. The learned trial Court, on a detailed consideration of the evidence, dismissed the suit holding the will to be genuine and proper. In appeal, the learned District Judge set side the Will Ex.DW -2/A as being a document having been executing under suspicious circumstances and declared the Will to be null and void. Although the learned District Judge does not consider evidence of the witnesses, but when discussing/returning his findings on the points urged, simply says that on the basis of the oral and documentary evidence, there is ample scope for suspicion about the genuineness of the will Ex.DW -2/A, primarily basing his finding on the circumstances that the natural heirs have been excluded. This finding has been recorded in para 14 of the judgment. Other findings recorded therein are that the testator was an old person and that he died within two months after the execution of the Will as such, there are strong suspicious circumstances regarding the genuineness of the Will.

(3.) IN Shantilal Kesharmal Gandhi v. Prabhakar Balkrishna, 2007(2) SCC 619, the Supreme Court held : - (7) On going through the judgments of the trial Court, and the appellate Court in the light of the submissions made before us it may be possible to say that there has been a failure on the part of the appellate Court to discuss all the relevant materials and to that extent its conclusion is open to challenge. The trial Court had considered the relevant aspects and had recorded is conclusions. The appellate Court should have made a proper reappraisal of the pleadings and the evidence in the case before coming to an independent conclusion of either affirming the findings of the trial Court or of interfering with them. Some items of evidence brought to our notice are not seen discussed by the first appellate Court. The first appellate Court being the final court of fact and law, should have made a proper examination of the relevant materials. To that extent there may be a point in the submission of learned Counsel for the tenant. But then, we may have to reckon with the reasoning of the trial Court before we make up our mind on the question of interference with the finding on that aspect.