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.
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.
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.
(S.B. SINHA)