Ramdhani [died / deleted] v. Shiv Das

Judgment

1. The appellants/defendants have preferred first appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth “CPC”) challenging the judgment & decree dated 21.10.2003 passed by First Additional District Judge, Ambikapur, Sarguja in Civil Suit No. 7-A 2002 (Shivdas Vs. Ramdhani & others) whereby suit filed by respondent No. 1/plaintiff was allowed and decree was granted in his favour. [For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the plaint filed before the trial Court]

2. Facts of the case, in brief, are that the plaintiff instituted a civil suit for declaration of his title over the suit land, declaration of illegality and nullity of sale-deed dated 26.7.2000 and partition stating inter alia that Alwa Das & Akil Das were two brothers, they were joint owner of the suit land mentioned in Schedule 'A' annexed with the plaint. Higni @ Rojni was wife of Alwa Das. They died issuless. Since they had no issue, therefore, after death of Alwa

Das, Higni @ Rojni kept Shivdas (son of defendant No. 5 – Naihar Das @ Mangal Das) for her assistance. Plaintiff -Shiv Das take care of Higni @ Rojni, he also used to cultivate her land, as both the brothers i.e. Alwa Das & Akil Das were cultivating their lands according to their share. Therefore, after death of Alwa Das, name of his wife Higni Bai @ Rojni was mutated in the revenue record in his place. Higni @ Rojni had executed registered Will dated

16.02.2000 in favour of plaintiff with her own free will and in a fit state of mind. After death of Higni @ Rohni on 28.2.2000, when plaintiff did process to get mutated half portion of suit land on the strength of aforesaid Will, then he came to know that defendant No. 1 to 3 namely Ramdhanidas, Manidas & Injore Das have executed registered sale deed dated 26.07.2000 (Ex.P-2) in respect of suit land mentioned in Scheduled ‘B’ ( which is part of suit land menioned in Scheduled ‘A’ ) in favour of defendant No. 4, who is daughter of defendant No.1. It is further pleaded that defendants No. 1 to 3 have sold more than their share vide registered sale-deed dated 26.07.2000, therefore, it is invalid in respect of excess share of defendants No. 1, 2 & 3. After death of Higni @ Rojni, when plaintiff started cultivating half of portion of suit land of Schedule ‘A’, which she was entitled and which was being cultivated by her in her life time, then defendants No. 1 to 4 started disputing the same, therefore, plaintiff filed civil suit seeking relief for declaration of his title over half (½ ) share of suit land of Schedule ‘A’ on the strength of Will executed in his favour by Higni @ Rojni and other reliefs as has been stated in opening line of this paragraph.

3. Defendants No. 1 to 4 filed their joint written statement, in which they have denied facts, which have been pleaded by plaintiff against them, stating inter alia that Higni @ Rojni was not a wife of Alwa Das, rather Chamarhin Bai was married wife of Alwa Das, she died in life time of Alwa Das. Higni @ Rojni was not the married wife of Alwa Das, rather she was residing alongwith him as concubine. Since Higni @ Rojni had no relation with Alwa Das, therefore, neither she had any right over the property of Alwa Das, nor she was competent to execute alleged Will dated 16.2.2000 (Ex.D-1). Further, the said Will dated 16.02.200 is forged & fabricated document, therefore, Tahsildar, Seetapur refused to enter the name of plaintiff in place of Higni @ Rojni in the revenue record of the suit land. It has further been pleaded that after about 12 days of execution of alleged Will, Higni @ Rojni expired, as her health was not well prior to her death, therefore, they have challenged the validity of Will. They have further pleaded that registered sale deed dated

26.7.2000 executed by defendants No. 1 to 3 in favour of defendant No. 4 is valid one and sale made through aforesaid sale-deed is well within the limit of their share, hence, the suit filed by plaintiff is liable to be dismissed.

4. Defendant No. 5 – Nayihan Das @ Mangaldas (father of plaintiff) has filed separate written statement, in which, he has supported the averments made by the plaintiff in his plaint.

5. Based on pleading of both the parties, learned trial Court framed as many as 12 issues. Plaintiff examined four witnesses namely Shivdas himself as PW-1, Dudheshwar Nath Singh (PW-2), Bholaram (PW-3) & Thakur Prasad (PW-4). Dudheshwar Nath Singh and Thakur Prasad are said to be attesting witnesses of Will (Ex.P-1c). Defendants have examined Haribhajan Das as DW-1, who is son-in-law of defendant No. 1 – Ramdhani, as their witnesses, but none of the defendants have examined themselves. Apart from Haribhajan Das (DW-1), Madan Singh (DW-2), Jhirgi Bai (DW-3), who is mother of plaintiff, have also been examined.

6. Learned trial Court, after appreciation of evidence, has held that registered Will (Ex.P-1c) dated 16.02.2000 is a valid document, as such, the plaintiff is entitled to get half (½) share of suit land i.e. share of Alwa Das and sale-deed executed by defendants No. 1 to 3 in favour of defendant No. 4 was also declared illegal and void to the extent of share of plaintiff, granted half (½) share of suit land to the plaintiff on the strength of Will (Ex.P-1c), thereafter, defendants No. 1 to 3 & 5 are entitled to get equal share of remaining half share of suit land.

7. Being aggrieved & dissatisfied with the judgment & decree passed by the trial Court, defendants preferred instant first appeal questioning the same.

8. Learned counsel appearing for the appellants /defendants submits that Chamarhin Bai was first wife (married wife) of late Alwa Das, whereas, Higni @ Rojni was not married wife of late Alwa Das, rather she was residing with him as his concubine, she has no right over the property of Alwa Das, as such, alleged Will dated 16.02.2000 (Ex.P-1c) executed by Higni @ Rojni in favour of plaintiff – Shivdas is illegal, as she had no right to dispose of property of Alwa Das. It is further submitted that aforesaid Will has also not been proved by plaintiff as per requirement of law, but learned trial Court, without considering aforesaid facts, has held that Will (Ex.P-1c) has been validly executed in favour of plaintiff, which is perverse and illegal. It is further submitted that since partition was not effected between Alwa Das and his brother Akil Das; and Alwa Das and his wife – Chamarhin Bai died issuless, therefore, after death of Alwa Das, his brother Akil Das obtained absolute title over the suit land and after his death, defendant No. 5 - Nayihar Das @ Mangalds and his brother Ramdhani, Manidas and Injore Das (defendants No. 1 to 3) obtained equal share over the suit land. It is further submitted that defendants No. 1, 2 & 3 have sold only 2.404 hectare of suit land mentioned in Schedule ‘B’ annexed with the plaint vide registered sale deed dated

26.07.2000 (Ex.P-2) in favour of defendant No. 4 – Smt. Kamla Devi, thus, aforesaid sold land is within the share of vendor (defendants No. 1, 2 & 3), hence, aforesaid sale deed cannot be declared invalid, but learned trial Court, without considering aforesaid facts and relevant law, has decreed the suit of plaintiff, which is perverse and against the law, as such, it is prayed that the first appeal may be allowed; judgment & decree passed by the trial court may be set aside by dismissing the civil suit filed by the plaintiff.

9. Per contra, learned counsel appearing for respondent No.1 / plaintiff would submit that Higni @ Rojni was the only wife of Alwa Das and they died issueless. After death of Alwa Das, his wife Higni @ Rojni had executed registered Will (Ex.P-1c) dated 16.02.2000 in favour of plaintiff Shivdas, S/o Nayhair Das @ Mangaldas because Higni Bai @ Rojni had kept him with her for her assistance and plaintiff was taking care of her. It is further submitted that the plaintiff has proved Will (Ex.P-1c) by examining both attesting witnesses of the Will and nothing has been brought in their cross-examination to prove that at the time of execution of Will, Higni @ Rojni was not in a fit state of mind. They have also not brought any fact to demonstrate that aforesaid Will is surrounded by any suspicious circumstances, therefore, learned trial Court has held that Will (Ex.P-1c) is valid Will, as such, the plaintiff has been granted half share of the suit land mentioned in Schedule “A” annexed with the plaint on the strength of Will executed by Higni & Rojni in his favour, as Higni Bai & Rojni through her husband Alwa Das was entitled to get half share of suit land. Learned counsel appearing for the appellants further submits that after apportionment of aforesaid half share, four sons of Akil Das namely Ramdhani, Mani Das, Anjor Das and Naiyhar Das @ Mangaldas are entitled to get remaining half share of the suit land and since defendants No. 1 to 3 have sold their share vide registered sale-deed dated

26.7.2000 (Ex.P-2), as such, they are not entitled to get any share of remaining half share of suit land, but since they have sold 2.404 hectare, which is more than from their share, meaning thereby since they have sold more than their share, therefore, the trial Court has rightly held that sale deed is invalid to the extent of interest of plaintiff. It is lastly submitted that impugned judgment has been passed as per the evidence available on the record, hence, the first appeal is liable to be dismissed.

10. I have heard learned counsel appearing for the parties and perused the material available on record.

11. In this appeal, the following issues arose for consideration :- (i) Whether finding arrived at by the trial Court that Higni Bai @ Rojni was lawful wife of Alwa Das, is perverse & illegal ? (ii) Whether Will [Ex.P-1c (certified copy Ex.D-1)] is legally executed Will by Higni @ Rojni in favour of plaintiff or was without authority and also surrounded by suspicious and unnatural circumstances, which makes it invalid and not genuine ? Answer to Issue No. 1

12. As per deposition of plaintiff Shivdas (PW-1), Higni @ Rojni was wife of Alwa Das and after death of Alwa Das, his widow’s name i.e. Higni @ Rojni was mutated in the revenue record of suit land alongwith defendants No. 1 to 3 & 5. He has specifically stated that Higni @ Rojni is name of one and same woman and she was legally wedded wife of Alwa Das. His aforesaid statement has been supported by Dudheshwar Nath Singh (PW-2), Bholaram (PW-3) and Thakur Prasad (PW-4), who are also the resident of village Poksari, Tahsil Seetapur, District Sarguja. Nothing has been elicited from their cross-examination to disbelieve their aforesaid statement. This statement has also been supported by Jhirgi Bai (DW-3), who is mother of plaintiff.

13. To elicit aforesaid statement of plaintiff and his witnesses, none of the defendants have examined themselves before the court, rather on behalf of defendants No. 1 to 4, Haribhajan Das (DW-1) has made statement on basis of alleged special power of attorney of them, but that power of attorney has neither been filed in the instant case nor has been proved by the defendants. Although, Haribhajan Das (DW-1) has stated that Chamarhin Bai was the legally wedded wife of Alwa Das, but she died during life time of Alwa Das and Higni @ Rojni had no relation with Alwa Das, rather according to him, she was residing as servant of Alwa Das. But Madan Singh (DW-2), who is also resident of village Poksari, has deposed that when Chamarhin Bai went to her matrimonial place, thereafter, Alwa Das had kept Higni @ Rojni with him, although marriage was not performed between them, but in cross- examination, this witness has deposed that Alwa Das and Higni @ Rojni were residing as husband & wife and villagers had told him that marriage was solemnized between them. He has also admitted in cross-examination that except Higni @ Rojni, there was no other wife of Alwa Das. Thus, the plaintiff and his witnesses have specifically stated that Higni @ Rojni was wife of Alwa Das and this fact has not only supported by mother of plaintiff namely Jhirgi Bai (DW-3), rather it has also been supported by Madan Singh (DW-2). Aforesaid fact also get supported from certified copy of revenue papers Ex.P- 3 to Ex.P-6, wherein name of Higni Bai @ Rojni was recorded as widow of Alwa Das.

14. If Higni Bai @ Rojni was not the wife of Alwa Das and it is not a name of one and the same woman, then defendants to 1 to 3 ought to have been examined themselves before the Court, as being nephew of Alwa Das, they could have best witnesses, but they did not examine themselves, rather on their behalf, Haribhajan Das has examined himself as DW-1 on the basis of their special power of attorney, that too, the same has also not been proved in the instant case.

15. In the case of the case of Vidhyadhar Vs. Manikrao & another 1 , their lordships of the Supreme Court while considering the effect of non- examination of a party to the suit has observed in paragraph 17 as under :- “17 Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct……………….”

16. While considering the scope of deposition of power of attorney holder in place of principal, Hon’ble Supreme Court in the case of Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & others 2 has held in paragraph 13 as under :- “13. Order 3, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the 1 2 1999 (3) SCC 573 2005 (2) SCC 217 principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”

17. In the instant case, both the parties are descendants of Alwa Das and his brother Akil Das. Alwa Das died issuless. The plaintiff is son of Naihar @ Mangal Das (son of Akil Das). Defendants No. 1 to 3 are son of Akil Das whereas defendant No. 4 Smt. Kamla Devi is daughter of defendant No.1 – Ramdhani. Thus, to prove the relationship between Higni @ Rojni with Alwa Das and whether aforesaid names i.e. Higni and Rojni is name of one and the same woman or not, defendants could have the best witnesses, but none of the defendants have examined themselves. Whereas, plaintiff & his witnesses and defendants’ witnesses also deposed that Higni @ Rojni was wife of Alwa Das, which also get support from revenue documents i.e. Ex.P-3 to Ex.P-6, as name of Higni @ Rojni was mutated in place of Alwa Das, after his death in revenue record of the suit land. Although, in revenue record only ‘Rojni’ has been written and her second name ‘Higni Bai’ has not been written, but from deposition of plaintiff and defendants’ witnesses, it is found proved that Higni Bai @ Rojni was name of one and the same woman and she was wife of Alwa Das, as such, finding recorded by trial Court that Higni @ Rojni was wife of Alwa Das, is found to be correct and based on evidence available on record, therefore, aforesaid finding is affirmed by this Court also. Answer to Issue No. 2.

18. Section 63 of the Indian Succession Act, 1925 ( for short, the Act, 1925) lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act, 1872 (henceforth, Act, 1972) postulates the mode, manner and prove of execution of document, which is required by law to be attested. It, in unequivocal terms states that execution of Will must be proved atleast by one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. The burden of prove that the Will has been validly executed in terms fo Section 63 of the Act, 1925 and is a genuine document is on the propounder. Propounder is further required to remove the suspicion by leading sufficient and cogent evidence, if there exists any. However, if a defence of fraud coercion and or undue influence is raised, the burdem would be on the caveator subject to above, the prove of a Will does not ordinary differ from that of proving any other document.

19. The Supreme Court in case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas3 while reiterating the position of law as laid down by it in the case of H. Venkatachala Iyengar vs B. N. Thimmajamma & Others 4 has held as under :- “14…………...It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also.”

20. Further, Hon’ble Supreme Court in the case of Madhukar D. Shende vs Tarabai Aba Shedage 5 , by drawing distinction between mere suspicion and well founded suspicion, has observed in paragraphs 8 and 9 as under :- “8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy 3 2008 (15) SCC 365 4 AIR 1959 SC 443 5 2002 (2) SCC 85 the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act,

1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge 1838, 2 Lewis CC 227 may be apposite to some extent "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative.

9. It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.”

21. In the case of Meena Pradhan v. Kamla Pradhan 6 , Hon'ble Supreme Court, considering its various judgments on the principles required to be proved with regard to the validity of execution of Will, has observed in para 10 & 11 as under:- “10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp (1) SCR 426 : AIR 1959 SC 443] (three-Judge Bench), Bhagwan Kaur v. Kartar Kaur [Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135] (three-Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam [Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] (two-Judge Bench), Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh [Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 : (2009) 2 SCC (Civ) 348] (three-Judge Bench) and Shivakumar v.Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] (three-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the will:

10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;

10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the will or it shall be signed by some other 6 (2023) 9 SCC 734 person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;

10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier.

10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;

10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277]”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.

11. In short, apart from statutory compliance, broadly it has to be proved that : (a) the testator signed the will out of his own free will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the will was not executed under any suspicious circumstances.”

22. Reverting to the facts of the instant case, plaintiff Shivdas (PW-1) has deposed that Alwa das and his wife Higni @ Rojni were issueless, therefore, after death of Alwa Das, his wife Higni @ Rojni had kept him with her to assist her, hence, he take care and served her till her life time, even his marriage was also performed by her and after her death, he had performed her last rituals. He has further deposed that she was pleased from him, therefore, she has executed registered Will (Ex.P-1c) / certified copy of Ex.D-1 in respect of her share of suit land, which was undivided property of Alwa Das and his brother Akil Das. He has further deposed that she had executed aforesaid Will with her free will and in a fit state of mind.

23. Dudhewar Nath Singh (PW-2) & Bholaram (PW-3), who are attesting witnesses of Will (Ex.P-1c), have specifically deposed that on being called by Higni Bai @ Rojni, they had gone to her house where Registrar and his clerk were present, there Will was got executed by Higni @ Rojni in favour of plaintiff and after execution of the same, it was read and explained in front of them, thereafter, Higni @ Rojni put her thumb impression,subsequently, they also put their signature on aforesaid Will. These witnesses have admitted that at the time of execution of Will, Higni @ Rojni was unable to walk, as she has grown old, but she was capable to think and understand. Dudheshwar Nath Singh (PW-2) has denied suggestion in his cross-examination that due to old age, she was unable to hear and see. He has also deposed in his cross-examination that Will was read over & explained to her in front of him.

24. Thakur Prasad (PW-4) has admitted in his cross-examination that due to old age, she was unable to walk and sit properly, her eyesight and hearing capability were also poor, as such, she was physically & mentally deteriorated. But he has not been suggested that due to aforesaid deterioration, she was not fit state of mind. This type of deformities is normal to the old aged persons, but only because of such deformity, it cannot be said that the person is not in a fit state of mind and he or she is unable to think over and understand the things. Neither attesting witnesses of the Will namely Thakur Prasad (PW-4) nor Dudheshwar Nath Singh (PW-2) have stated in their cross-examination that due to old age, Higni @ Rojni had lost power of thinking and understanding.

25. Nothing has been brought in the cross-examination of these two attesting witnesses namely Dudheshwar Nath Singh (PW-2) & Thakur Prasad (PW-4) to disbelieve their statements that Higni @ Rojni had got executed registered Will (Ex.P-1c) in favour of plaintiff in her fit state of mind.

26. As has been stated in preceding paragraphs that defendants would have best witnesses to make statements about facts of the case and even in respect of physical and mental status of Higni @ Rojni, but none of the defendants have entered into witness box to contradict the statement of plaintiff’s witnesses. On their behalf, they had authorised DW-1 Haribhajan Das (son-in-law of defendant No. 1) on the basis of power of attorney, but he is not a resident of Village Poksari, rather he is resident of other village, which is, as per his statement, about 30 kms far from village Poksari. Further, he is not found to be competent witness on the strength of whom, deposition of plaintiff and attesting witnesses of Will (Ex.P-1c) can be discarded.

27. Although perusal of certified copy of Will (Ex.D-1) and photo copy of Will (Ex.P-1c) show that while execution of Will only one name ‘Higni’ was written as testator of the Will and her second name ‘Rojni’ was not written on it, but it has been proved by plaintiff and his witnesses that Higni @ Rojni was name of one and the same woman, who was wife of Alwa Das, therefore, only on this count aforesaid Will, cannot be held to be suspicious because both the attesting witnesses are resident of village Poksari, which is village of plaintiff and testator Higni @ Rojni and they have proved execution and attestation of Will. Thus, defendants have failed to prove any suspicious circumstances in respect of Will executed by Higni @ Rojni, rather its valid execution has been proved by both attesting witnesses namely Dhudhewar Nath Singh (PW-2) and Thakur Prasad (PW-4) and it is also found proved that she was competent in all manner to execute the Will. Therefore, I do not find any perversity or illegality in the finding recorded by learned trial Court that Will executed by Higni @ Rojni in favour of plaintiff is a valid Will. As such, both the issues framed in above paragraph 11 are answered against the defendants and in favour of plaintiff.

28. Since suit land mentioned in Schedule “A” is an undivided property of Alwa Das and his brother Akil Das, therefore, they were entitled to get equal share. Alwa Das and his wife Higni @ Rojni died issuless and Higni @ Rojni executed Will Ex.P-1c in favour of plaintiff, as such, the plaintiff is entitled to get share of Alwa Das / his wife, which is half (½) share of suit land and remaining half (½) share will be received by Akil Das, since he had died, therefore, his share of the suit land would be received by his four sons namely defendant No. 1 – Ramdhani, defendant No. 2 – Manidas, defendant No. 3 – Injore Das and defendant No. 5 -Naihar Das @ Mangaldas. Defendants No. 1 to 3 have sold 2.404 hectare land vide registered sale-deed dated 26.7.2000 (Certified copy Ex.P-2) to defendant No. 4 – Smt. Kamla Devi, who is said to be the daughter of defendant No. 1 -Ramdhani, which is more than their share, therefore, learned trial Court has not committed any error to declare illegality/ nullity of aforesaid sale-deed (Ex.P-2) to the extent of share of plaintiff.

29. Since defendants No. 1 to 3 have sold more than their share, therefore, they are not entitled to get any share over the suit land, as on the strength of sale-deed (Ex.D-2) executed by them, defendant No. 4 – Kamla Devi is entitled to get their share; whereas defendant No. 5 – Naihardas @ Mangaldas is also entitled to get ¼ share from the share of his father – Akil Das, therefore, sale deed (Ex.P-2) is also declared illegal and void in respect of 1/4th share of defendant No. 5 – Naihardas @ Mangaldas.

30. In view of foregoing discussion, I do not find any illegality or infirmity in the judgment impugned passed by the trial Court decreeing the suit in favour of the plaintiff. Therefore, the same is affirmed and appeal is dismissed.

31. Parties shall bear their own cost (s). A decree be drawn-up accordingly. Schedule ‘A’, ‘B’ & “C” annexed with the plaint shall form part of the decree. Sd/- (Naresh Kumar Chandravanshi) Judge AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY 18:24:08 +0530