Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK R.S.A. No.286 of 2003 In the matter of an appeal under Section 100 C.P.C, 1908. *** Gokulananda Joshi (dead) & Others … Appellants. -VERSUS- Prakash Chandra Joshi & Others … Respondents. Counsel appeared for the parties: For the Appellants : Mr. P.K. Khuntia, Advocate. For the Respondents : Mr. P.K. Satapathy, Advocate. P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 20.11.2025 :: Date of Judgment : 23.12.2025 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This 2nd Appeal has been preferred against the confirming Judgment. R.S.A. No.286 of 2003 Page 1 of 19 2. The appellants in this 2nd Appeal were the defendant Nos.2,3,4 and 7 before the learned Trial Court in the suit vide T.S. No.8/1987 and appellants before the learned First Appellate Court in the 1st Appeal vide T.A. No.16/1997. The respondent Nos.1 to 3 in this 2nd Appeal were the plaintiffs before the learned Trial Court in the suit vide T.S. No.8/1987 and respondent Nos.1 to 3 before the learned First Appellate Court in the 1st Appeal vide T.A. No.16/1997. The respondent Nos.4 to 7 in this 2nd Appeal were the defendant Nos.1(a), 1(b), 5 and 6 before the learned Trial Court in the suit vide T.S. No.8/1987 and they were the respondent Nos.4 to 7 before the learned Frist Appellate Court in the First Appeal vide T.A. No.16/1997. 3. As per the case of the plaintiffs, the plaintiffs and
Legal Reasoning
defendant Nos.1 to 4 and 7 belong to one family. Defendant No.1 Satya Narayan Joshi had 4 children i.e. two sons and two daughters, namely, Girija, Gokulananda Joshi (defendant No.2), Parbati (defendant No.1(a)) and Rebati (defendant No.1(b)). R.S.A. No.286 of 2003 Page 2 of 19 Girija died leaving behind his widow wife Nidhi Priya Joshi (Plaintiff No.3) and two sons i.e. Prakash (plaintiff No.1) and Pradeep (plaintiff No.2). Kanakalata Joshi (defendant No.7) is the widow wife of Gokulananda (defendant No.2). Subash (defendant No.3) and Ashis (defendant No.4) are the two sons of Gokulananda (defendant No.2). In order to have an instant reference, the family pedigree of the plaintiffs and defendant Nos.1 to 4 and 7 is depicted hereunder; Satya Narayan Joshi (D. No.1) Late Girija Gokulananda (D.No.2) Parbati Rebati (D. No.1(b)) (D.No.1(a)) Nidhi Priya (P. No.3) Kanakalata (D. No.7)(wife) Pradeep Prakash (P.No.1) (P. No.2) Subash Ashis (D. No.3) (D. No.4) R.S.A. No.286 of 2003 Page 3 of 19 4. The suit of the plaintiffs vide T.S. No.8/1987 was a suit for partition. The properties described in Schedule of the plaint are the suit properties. Originally the suit was filed by the plaintiffs against Satya Narayan Joshi (defendant No.1) along with defendant No.2. When during the pendency of the suit, the defendant No.1 (Satya Narayan Joshi) expired, then, in his place, his two daughters i.e. defendant Nos.1 (a) and 1(b) were substituted. Subsequent thereto, defendant Nos.3,4 and 7 were impleaded. According to the plaintiffs, suit properties are their joint and undivided ancestral properties. The suit properties have not been partitioned/divided between them i.e. plaintiffs and defendants at any point of time through any metes and bounds partition. The plaintiffs being the successors of the first son of the deceased defendant No.1 (Satya Narayan Joshi) i.e. Girija Shankar Joshi, they (plaintiffs) are entitled to the share of their predecessor Girija Shankar Joshi in the suit properties. When the defendant Nos.1 & 2 did not accept the proposal of the plaintiffs for partition of the suit properties, then, they (plaintiffs) filed the suit vide T.S. No.8/1987 against R.S.A. No.286 of 2003 Page 4 of 19 the defendants praying for partition of their legitimate share from the suit properties. 5. The defendant Nos.1,2,3,4 & 7 contested the suit of the plaintiffs by filing their joint written statement as well as additional written statement taking their stands that, the suit properties originally belonged to one Dinabandhu Joshi (father of the defendant No.1). The said Dinabandhu Joshi surrendered to the suit properties to the State and thereafter, the suit properties were settled in the name of the wife of the defendant No.1 i.e. in the name of Janaka Kumari Joshi. The wife of the defendant No.1 relinquished her right in the suit properties and prayed before the revenue authorities for recording the same in the name of defendant No.1 (Satya Narayan Joshi). During Mukharjee Settlement, separate R.o.R of the suit properties were prepared in favour of the defendant No.1 (Satya Narayan Joshi). For which, the suit properties are the self-acquired properties of the defendant No.1 (Satya Narayan Joshi), in which, the plaintiffs have no interest and the suit properties cannot liable for partition. As, the suit properties were the self-acquired properties of the defendant No.1 (Satya Narayan Joshi), for which, the R.S.A. No.286 of 2003 Page 5 of 19 defendant No.1 (Satya Narayan Joshi) has bequeathed the suit properties in favour of the defendant Nos.2,3,4 & 7 by executing and registering a Will on dated 28.01.1993, therefore, they (defendant Nos.2 to 4 and 7) are the owners of the suit properties, as in the meantime, the testator i.e. (defendant No.1, Satyanarayan Joshi) has expired, in which, the plaintiffs have no interest. For which, the suit for partition in respect of the suit properties filed by the plaintiffs is liable to be dismissed. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 10 numbers of issues were framed by the learned Trial Court in the suit vide T.S. No.8/1987 and the said issues are: ISSUES Whether the suit land is liable for partition between the Whether there is any cause of action for the suit? Whether the suit land is joint property? Whether the suit land is self acquired property of defendant 1. 2. 3. No.1 (Satya Narayan Joshi)? 4. plaintiffs and the defendants? 5. Whether the will executed by defendant No.1 (Satya Narayan Joshi) in favour of defendant Nos.2 to 4 and 7 is valid and binding? 6. the suit properties in favour of the defendant Nos.2 to 4 and 7? 7. land by defendant No.1 is illegal? Whether the transfer of “C”, “D”, “E” and “F” schedule Whether the defendant No.1 had the right of bequeathing R.S.A. No.286 of 2003 Page 6 of 19 Whether on partition the defendant No.2 be reimbursed by in 8. towards the plaintiffs reconstructing the house at sundergarh? 9. 10. Whether the suit is maintainable? To what relief, the plaintiffs are entitled to? incurred by him the expenditure 7. In order to substantiate the aforesaid relief sought for by the plaintiffs against the defendants, the plaintiffs examined 5 witnesses from their side including the plaintiff No.1 as P.W.1 and relied upon the documents vide Exts.1 to 17. On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendant Nos.2 to 4 and 7 examined 8 witnesses on their behalf including the defendant No.2 as D.W.7 and exhibited several documents on their behalf vide Exts.A to X. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned Trial Court answered issue No.3 against the plaintiffs assigning the reasons that, “the properties described in Schedule “C”, “D”, “E”, “F” and “G” are the part of Schedule “A” and “B” Schedule suit properties, the same are not the ancestral properties of Satya Narayana Joshi (defendant No.1) but the said properties are the self-acquired properties of defendant No.1 (Satya Narayan R.S.A. No.286 of 2003 Page 7 of 19 Joshi). After the death of Satya Narayan Joshi (defendant No.1), the suit properties left by him devolved upon the plaintiffs and defendant No.2. The Will said to have been executed by Satya Narayan Joshi (defendant No.1) on dated 28.01.1993 (Ext.A) in favour of the defendant Nos.2 to 4 and 7 in respect of the suit properties is not beyond suspicion and the so-called Will vide Ext.A is not binding upon the plaintiffs. For which, the plaintiffs are jointly entitled for half share from the suit properties and decreed the suit of the plaintiffs preliminarily for partition on contest against the defendant Nos.2,3,4 and 7 and ex parte against the defendant Nos.1(a) and 1(b) and dismissed the same against the defendant Nos.5 & 6 as per its Judgment & Decree dated 29.08.1997 and 22.09.1997 respectively entitling all the plaintiffs to get half share jointly from the suit properties.” 9. On being dissatisfied with the aforesaid Judgment and Decree passed by the learned Trial Court in T.S. No.8/1987, the defendant Nos.2 to 4 and 7 challenged the same preferring the First Appeal vide T.A. No.16/1997 being the appellants against the plaintiffs arraying them (plaintiffs) as R.S.A. No.286 of 2003 Page 8 of 19 respondent Nos.1 to 3 and also arraying the other defendants as respondents. After hearing from both sides, the learned First Appellate Court allowed the 1st Appeal vide T.A. No.16/1997 of the appellants (defendant Nos.2,3,4 & 7) in part on contest and decreed the suit of the plaintiffs vide T.S. No.8/1987 preliminarily for partition modifying the allotted shares in respect of the suit properties by the learned Trial Court in its Judgment and Decree clarifying that, the plaintiffs are jointly entitled to get 1/4th share, the defendant Nos.2, 1(a) and 1(b) are entitled to get 1/4th share each. Because, the suit properties were the self-acquired properties of defendant No.1 (Satya Narayan Joshi) and he (defendant No.1) died leaving behind his 4 children i.e. Girija (predecessor of the plaintiffs), Gokula Nanda Joshi (defendant No.2), Parbati Thakur (defendant No.1(a)) and Rebati Purohit (defendant No1(b)) as per its Judgment dated 06.03.2003. 10. On being aggrieved with the aforesaid Judgment passed by the learned First Appellate Court in the First Appeal vide T.A. No.16/1997, the defendant Nos.2 to 4 and 7 (appellants in the 1st Appeal vide T.A. No.16/1997) challenged the same R.S.A. No.286 of 2003 Page 9 of 19 preferring this 2nd Appeal being the appellants against the plaintiffs and other defendants arraying them as respondents. 11. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. it son, Whether Whether in a Will executed by I. father is in favour of one necessary/must to recite that there was strained relationship of father with other son, or legal heirs of other son, those have been debarred from their share? II. Whether the satisfaction of testator that being pleased with the care taken by beneficiary at his old age, is a sufficient ground to execute the Will in his favour? III. one attesting witness in Court and his deposition to the effect that other attesting witness was present at the time of execution of Will can be taken to be a sufficient compliance, regarding execution of Will? IV. Whether the admission of plaintiffs in cross-examination about construction of house by defendant No.2 is a sufficient ground along with other evidences of defendants to claim compensation for the suit house? examination of 12. I have already heard from the learned counsel for the
Legal Reasoning
appellants and the learned counsel for the respondents. 13. During the course of hearing, in order to assail the impugned Judgments and Decrees, the learned counsel for the appellants (defendant Nos.1 to 4 & 7) relied upon the following decisions: R.S.A. No.286 of 2003 Page 10 of 19 (i) AIR 2009 SC 354 (Para No.4): Jatindar Singh Vs. Meher Singh. (ii) 1995 (II) OLR (SC) 221 (Para Nos.3 to 5) PPK Goplan Nambian Vs. PPK Balakrishnan Nambian. (iii) (1998) 8 SCC 128 (Para No.18, Page 144): Dr. Mahesh Chandra Sharma Vs. Raj Kumari Sharma & Others. (iv) AIR 1967 SC 878 (Para Nos.10 & 11): Subash Chandra Vs. Ganga Prasad. (v) AIR 2003 SC 3109 (Para No.7):Rambai Padmakar Patil Vs. Rukini Bai Vishnu & Others. 14. On the contrary, in support of the impugned Judgments and Decrees, the learned counsel for the respondents (plaintiffs) relied upon the following decisions: (i) AIR 2023 SC 4680 Para No.9 to 11: Meena Pradhan Vs. Kamala Pradhan. (ii) AIR 2024 (SC) (Civil) Para No.20: Moturu Nalini Kanth Vrs. Gainebi Kali Prasad. (iii) AIR 2003 (SC) 761 Para No.12: Janaki Narayan Bhoir Vs. Narayan Nam Deo Kadam. (iv) 2009 (1) OLR 170 (SC) Para Nos.8, 14 & 40: Lalitaben Jayanti Popat Vs. Pragnaben Jamnadas Katoria (iv) 2025 SCC 1084 Para No.18 & 19: Gurdial Singh (dead) through LRs Vs. Jagir Kaur (dead) and Another. 15. As per the Judgments and Decrees passed by the learned Trial Court and learned First Appellate Court on the R.S.A. No.286 of 2003 Page 11 of 19 basis of the pleadings and evidence of the parties, when all the aforesaid formulated substantial questions of law are inter related for the adjudication about the correctness of the concurrent findings of the learned Trial Court and the learned Frist Appellate Court about the genuineness of the Will in question vide Ext.A said to have been executed by the defendant No.1-Satya Narayan Joshi in favour of the defendant Nos.2 to 4 and 7 in respect of the suit properties, then, all the formulated substantial questions of law are taken up together analogously for their discussions hereunder: 16. In order to establish the genuineness of the disputed Will dated 28.01.1993 vide Ext.A, the so-called beneficiaries of the Will vide Ext.A i.e. the defendant Nos.2 to 4 and 7 had examined 3 witnesses on their behalf. The so-called Will dated 28.01.1993 was marked during the trial of the suit as Ext.A on behalf of the defendant Nos.2 to 4 and 7. An issue was framed by the learned Trial Court in the suit vide T.S. No.8 of 1987 as issue No.5 for answering the genuineness of the so-called Will dated 28.01.1993 vide Ext.A R.S.A. No.286 of 2003 Page 12 of 19 i.e. whether the said Will in question vide Ext.A is valid and binding. 17. The learned Trial Court as well as the learned First Appellate Court both have answered concurrently such issue No.5 against the defendant Nos.2 to 4 and 7 in their respective Judgments and Decrees assigning the reasons that, “the Will dated 28.01.1993 vide Ext. “A” does not appear to be free from suspicion. For which, Ext.A is decided not to be a valid document, because, the said Will was executed on dated 28.01.1993 during the pendency of the suit by the defendant No.1 (Satya Narayan Joshi), but the defendant No.1 had not stated anything in the suit through any additional written statement during his lifetime about the execution of the same by him (defendant No.1) and the defendant No.1 was staying jointly with the defendant Nos.2 to 4 & 7 and the defendant No.1 was an advance age i.e. 89 years and by the so-called Will vide Ext.A, the entire suit properties were bequeathed in favour of the defendant Nos.2 to 4 and 7 excluding the other successors of defendant No.1 i.e. plaintiffs and defendant Nos.1(a) and 1(b) and the evidence of the scribe and attesting witness are not corroborative each other. So, for the aforesaid reasons, it was held that, the execution of the said Will dated 28.01.1993 vide Ext.A is not beyond suspicion and, the same was not held as a valid document.” R.S.A. No.286 of 2003 Page 13 of 19 18. Now, it will be seen, whether the above concurrent findings and observations made by the learned Trial Court and learned First Appellate Court that, the so called Will in question dated 28.01.1993 vide Ext.A is not beyond suspicion is sustainable under law? The manner of proving a disputed Will like Ext.A in this suit/appeal at hand has already been clarified in the ratio of the following decisions: I. II. In a case between Ramesh Chand (D) Thr. LRs. Vs. Suresh Chand & Another reported in 2025 (3) SCC 219 (SC) that, fact that Will was registered, will not grant validity to the document. In a case between Rajinder Pal Singh Dhaliwal Vs. General Public & Others reported in 2025 (2) Civ.C.C. 789 (P & H), that, attesting witness must satisfy the judicial conscience that, he saw testator signing the Will that he was aware of its contents. Attesting witness needs to be trustworthy and truthful. (Para Nos.10 & 11) III. In a case between Moturu Nailini Kanth Vs. Gainedi Kaliprasad (dead through LRs) reported in 2024 (1) Civil Court Cases 714 SC that, mere registration `of Will does not attach to it a stamp of validity and it must still be proved in terms of legal requirements as provided under Section 63 of Succession Act and Sections 68 & 69 of Evidence Act. (Para No.20) IV. In a case between In the Goods of : Buddhadev Bose (Dec.) reported in 2023 (2) Civ.C.C. 510 Calcutta that, attestation of Will means to testify the signatures of executant. It is not a mere formality. Will should be attested by two or more witnesses and propounder should examine one attesting witness to prove the Will. Attesting witness should speak not only about testator’s signature R.S.A. No.286 of 2003 Page 14 of 19 or affixing his mark to the Will but also each of the witnesses had signed the Will in presence of the testator. (Para No.8) V. In a case between Murthy & Others Vs. C. Saradambal & Others reported in 2021 (4) CCC 429 (SC) that, genuineness of Will must be proved by proving intention of testator to make testament and for that, all steps which are required to be taken for making a valid testament must be proved by placing concrete evidence before Court. VI. In a case between Dr. Vikas Gour & Another Vs. Naval Kishore & Another reported in 2021 (1) Civil Court Cases 403 (P & H) that, Court can hold a registered Will as not genuine if there are suspicious circumstances surrounding the Will. (Para No.8) VII. In a case between Amit Kumar Vs. State of NCT of Delhi & Others reported in 2020 (3) Civil Court Cases 676 Delhi that, it is incumbent on attesting witness while appearing in Court and tendering his affidavit by way of examination-in-chief in evidence, identify the signature of the executant and signatures of himself and other witnesses on the document, without which a document as Will is not proved. (Para No.10). VIII. In a case between Sujata Kohili Vs. State & Others reported in 2019 (3) Civ.C.C. 408 (Delhi) that, one attesting witness examined to prove Will. Attesting witness examined failed to prove due execution of Will as he did not state (i) he and other attesting had seen the testator signing or putting his mark on the Will (ii) he and the other witness have signed the Will as witnesses in the presence of testator. (Para No.12) 19. The scribe of the so-called Will vide Ext.A i.e. D.W.1 has deposed in his evidence by stating that, “he is working as a deed writer. He knows Satya Narayan Joshi (defendant No.1), the said Satya Narayan Joshi (defendant No.1) himself was a R.S.A. No.286 of 2003 Page 15 of 19 deed writer. He (D.W.1) has scribed the Willnama as per the instruction of Satya Narayan Joshi. He read over and explained to him. The witnesses put their signatures in the Will. Satya Narayan Joshi also signed in the Will, which is marked as Ext.A. His signature is Ext.A/1. The signature of Satya Narayan Joshi is marked as Ext.A/2. The age of Satya Narayan Joshi was 89 years.” D.W.1(scribe of the so-called Ext.A) has not exhibited to the signatures of any of the attesting witnesses on the Ext.A, though, he (D.W1) has deposed above that, the witnesses, those were present there, they signed in the Will. He (D.W.1) has not uttered a single word, who was the witness and who had signed on the Ext.A (Will). The D.W.2 one of the so-called witness to the Will in question vide Ext.A has deposed that, “the contents of the deed were read over and explained to them”. He (D.W.2) has not uttered a single word about the reading over and explaining the contents of the Ext.A to the so-called testator Satya Narayan Joshi (defendant No.1). The said D.W.2 has deposed in Para No.5 of his deposition that, “during scribing of the Willnama, nobodyelse was present except him till registration R.S.A. No.286 of 2003 Page 16 of 19 and the same was executed in favour of Gokulananda Joshi alone, again says, unless, the deed is seen by him, he cannot say.” The above evidence of D.W. 2 is going to show that, except him and the executant (defendant No.1), no other person including the deed writer was present till registration of the said Will vide Ext.A. When D.W.1 & 2 have deposed that, the so- called Will vide Ext.A was executed in favour of the defendant No.2, but the contents of the said Will vide Ext.A is going to show that, the same was executed in favour of the defendant Nos.2 to 4 and 7. 20. In the above manner, the evidence of D.W.1 and D.W.2 (scribe and the so-called witnesses of the Will in question) are contradictory to each other. That apart, when Satya Narayan Joshi himself was a deed writer and if he (Satya Narayan Joshi) was hale and hearty for execution of the Will, then, what prevented him to write the Will by his own hand. There is no explanation about the same on behalf of the defendant Nos.2 to 4 and 7. R.S.A. No.286 of 2003 Page 17 of 19 Therefore, by applying the propositions of law enunciated in the ratio of the aforesaid decisions to the aforesaid self- contradictory depositions of D.Ws.1 and 2, it cannot be held that, the execution of the Will in question vide Ext.A was beyond suspicion. For which, the concurrent findings and observations made by the learned Trial Court and learned First Appellate Court that, the so-called Will in question dated 28.01.1993 vide Ext.A was not beyond suspicion cannot be held as erroneous. For which, the decisions relied upon by the learned counsel for the appellants (defendant Nos.2 to 4 & 7) indicated in Para No.13 of this Judgment have become inapplicable. When it is held that, the findings and observations made by the learned First Appellate Court are not erroneous, then, at this juncture, the question of interfering with the same through this 2nd Appeal filed by the defendant Nos.2 to 4 and 7 does not arise. 21. Therefore, it is held that, there is no merit in this 2nd Appeal filed by the appellants (defendant Nos.2 to 4 and 7). The same must fail. R.S.A. No.286 of 2003 Page 18 of 19 22. In result, this 2nd Appeal filed by the appellants (defendant Nos.2 to 4 and 7) is dismissed on contest. 23. The Judgment & Decree passed by the learned First Appellate Court in T.A. No.16 of 1997 modifying the Judgment and Decree passed by the learned Trial Court is confirmed. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 23 .12. 2025// Rati Ranjan Nayak Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: OHC Date: 27-Dec-2025 14:57:56 R.S.A. 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