Nafr High Court
Case Details
1 2025:CGHC:11769 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 72 of 2014 1 - Shyamuram S/o Kamal Narayan Aged About 22 Years R/o Akalwara, Tah. Saja, Distt. Durg C.G., Chhattisgarh 2 - Dogendra Kumar S/o Netram Aged About 30 Years R/o Akalwara, Tah. Saja, Distt. Durg C.G., District : Durg, Chhattisgarh Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.03.11 10:26:41 +0530
Legal Reasoning
3 - Smt. Khediya Bai W/o Kartikram Aged About 89 Years R/o Akalwara, Tah. Saja, Distt. Durg C.G., District : Durg, Chhattisgarh ... Petitioner(s) versus 1 - Ramkumar S/o Kartikram Aged About 53 Years R/o Akalwara, Tah. Saja, Distt. Durg C.G., Chhattisgarh 2 - State Of Chhattisgarh W/o Thru- Collector, Distt. Durg C.G., District : Durg, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Kumaresh Tiwari, Adv on behalf of Mr. Manish For Res No.1 For Res No.2/State : : Upadhyay, Adv. None. Mr. T. S. Sahu, Panel Lawyer. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 10.03.2025 2 1. This is a Second Appeal filed by the plaintiffs under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) against the judgment and decree dated 12.12.2013 passed by the District Judge, Bemetara (CG) in Civil Appeal No.26-A/2013, which, in turn, arose out of the judgment and decree dated 13.05.2011 passed by the Civil Judge Class-II, Saja (CG) in Civil Suit No.75-A/2009. 2. By the impugned judgment and decree, the First Appellate Court dismissed the appeal filed by the plaintiffs (appellants herein) and in consequence, upheld the judgment and decree passed by the trial Court, which had dismissed the plaintiffs' suit. 3. It is admitted fact that appellant No.3 - Smt. Khediya Bai is the wife of late Kartikram, Respondent No.1 is the son of late Kartikram and Appellants No.1 and 2 are grandson of late Kartik Ram. It is alleged that late Kartik Ram Sahu has executed the questioned Will (Ex.P-1) in favour of the appellants/plaintiffs on 22.12.2005. When the plaintiffs tried to mutate their names in the Revenue records, respondent No.1 raised an objection for the same. Therefore, the appellants have preferred a civil suit for declaration of title and permanent injunction in respect of the subject property. However, the trial Court has dismissed the suit vide judgment and decree dated 12.12.2013 and same has been affirmed by the First Appellate Court. Hence, this appeal. 4. On 15.07.2024 this appeal was admitted for hearing on the following substantial question of law:- 3 "Whether finding recorded by both the Courts below that Will dated 22.12.2005 executed by late Kartikram Sahu in favour of the plaintiffs is false and fabricated, is perverse and illegal ?" 5. Learned counsel for the appellants/plaintiffs submits that both the Courts below have committed an error by not appreciating the evidence in its proper perspective. He submits that though the registered Will was executed by late Kartik Ram, however, learned Court below has given erroneous finding that late Kartik Ram was not physically fit and on the basis of assumption, the registered Will was held to improper. He also submits that due to old age deceased Kartik Ram was not able to sign, therefore, he has made thumb impression on the questioned Will. He submits that propounder of the Will has duly proved its execution. Therefore, the appeal may be allowed and impugned judgment and decree may be set-aside. 6. Heard learned counsel for the appellant and perused the record carefully. 7. In the matter of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and Others1 it has been observed that propounder is required to prove the Will not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances and following has been held in paras-11 & 12 which read as under:- “11. The law in regard to proof of a valid will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Succession Act reads as under: 1 (2008) 15 SCC 365 4 “63. Execution of unprivileged wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: (a)-(b)*** (c) The will shall be attested by two or more witnesses, each of whom has 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 acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” Indisputably, the said provision is mandatory in nature. A will is required to be attested by two or more witnesses. 12. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the will by examining at least one of the attesting witnesses. What is meant by the word “attestation” is defined in Section 3 of the Transfer of Property Act which reads as under: “3. Interpretation clause.—In this Act, unless there is something repugnant in the subject or context,— xx xx xx ‘attested’, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;” 5 8. Admittedly, defendant/respondent No.1 in his written statement has denied execution of the questioned Will (Ex.P-1) by late Kartik Ram. It is concurrent finding of fact recorded by both the Courts below that on the date of execution of questioned Will i.e. 22.12.2005, the deceased was suffering from illness and was bedridden and he was not able to understand anything. It is also admitted fact that the said illness continued till death of deceased i.e. 18.01.2006. It was also found that deceased was an educated person and was able to put his signature during his lifetime but in the questioned Will, a thumb impression was alleged to have been made by the deceased Kartik Ram and no expert opinion has been obtained by the propounder in this regard. The trial Court has also found that there is contradiction in the testimony of the witnesses. It has also been found that on the date of execution of questioned Will, two separate Wills were executed but the second Will was not proved during the trial. In consequence, it was recorded that the appellant has failed to prove that alleged Will is the last will of the deceased. Hence, there are various reasons and findings recorded by the trial Court which has raised doubt about execution of Will by the deceased in favour of the plaintiff and in such circumstances, the trial Court as well as the first Appellate Court disbelieved the execution of the Will by the deceased. 9. It is well established that when there is a concurrent finding of fact, unless it is found to be perverse, the Court should not ordinarily interfere with the said finding. 6 10. In view of the above settled legal proposition and considering the aforesaid findings recorded by both the Courts below, this Court is of the view that the judgment and decree passed by both the two Courts below appear to be just, proper and legal. The findings recorded by both the Courts are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and they do not call for any interference. 11.Consequently, the Second Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Ajay.