Chattisgarh High Court
Kuldeep Sahu vs Anita Jain And Others on 14 June, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 84 of 2007
Judgment Reserved on : 05.04.2022
Judgment Delivered on : 14.06.2022
Kuldeep Sahu, aged about 32 years, son of Chandrika Sahu, resident of
village Dhulna, Tahsil and District Raipur (Chhattisgarh).
---- Appellant
Versus
1. Smt. Anita Jain, aged 34 years wife of Shri Shriyansh Jain, resident of
Navapara (Rajim), Tahsil Abhanpur, District Raipur (Chhattisgarh).
2. Vishnue Prasad Sahu, son of Late Harmohan Singh, aged 70 years.
3. Smt. Sona Bai dead through L. Rs.
(i) Patrika Sahu, wife of Dhruv Kumar Sahu, aged about 52 years, resident
of village Tumgaon, District Mahasamund (Chhattisgarh) (Daughter).
(ii) Ashok Kumar Sahu, son of Budhram Sahu, aged about 48 years,
resident of vilage Banarsi, Thana and Tahsil Arang, Ditrict Raipur
(Chhattisgarh) (son).
(iii) Bhumin Bai @ Munni Bai, wife of Daulal Sahu, aged about 38 years,
resident of Dharam Nagar, Near Hanuman Mandir Pachpedi Naka, Raipur
(Chhattisgarh) (daughter).
4. Janki Bai widow of Punitram Sahu, aged about 60 years, Respondent No. 2
to 4, resident of Village and Post Banarsi, Thana Arang, Tahsil Arang, District Raipur (C.G.).
5. Omprakash, son of Late Punitram Sahu, aged 45 years, resident of village and P.O. Dulma, Thana Nayapara (Gobra), Tahsil Abhanpur, District Raipur (Chhattisgarh).
6. Rajkumar, Son of Late Punitram Sahu, aged 40 years, resident of Village and P.O. Banarsi, Thana and Tahsil Arang, District Raipur (Chhattisgarh).
7. Benkumari, wife of Shri Patiram Sahu, aged 35 years, resident of Post Lavan, Thana Lavan, Tahsil Baloda Bazar, District Raipur (Chhattisgarh).
8. Bhagwati Bai Sahu, wife of Rajkumar Sahu, aged 37 years, resident of Village and post umodi, Post Sakri, Thana Kharora, Tahsil Tilda, District Raipur (Chhattisgarh).
9. State of Chhattisgarh, Through Collector, Raipur (Chhattisgarh).
---- Respondents 2 For Appellant : Mr. H. B. Agrawal, Sr. Advocate along-with Ms. Preeti Yadav, Advocate For Respondents No. 1 to 9 : Mr. Mr. Parag Kotecha, Advocate For Respondent No. 9/State. : Mr. Ashish Gupta, P. L. Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. This is plaintiff's first appeal under Section 96 of the CPC against the judgment and decree dated 28th June, 2007 passed by 9th Additional District Judge (FTC), Raipur in Civil Suit No. 20-A/2003, whereby the suit filed by the plaintiff for declaration and permanent injunction has been dismissed.
2. Facts of the case, in brief, are that the plaintiff has instituted a civil suit for declaration of title and permanent injunction on 30.08.2001 stating inter alia that plaintiff is title and possession holder of the suit property as well as house constructed and other amenities attached with the suit property ad-measuring area 14.90 acres as described in para 2 of the plaint. The aforesaid suit property was given to him by executing a Will on dated 30.12.1979 by Shiv Prasad Sahu, S/o Mayaram Sahu and Smt. Rambati Bai, widow of Shri Ram Sahu, resident of village Dhulna, Police Station Rajim, Tahsil Abhanpur, District Raipur. When the said Will was executed, the plaintiff was minor i.e. aged about 4 years. Shiv Prasad Sahu and Smt. Rambati Bai had expired in the years 1982 and 1980, respectively and after the death of executant of the Will 30.12.1979, the same has been made effective, at that time also, the plaintiff was minor. At that time, his father Chandrika Prasad Sahu was taking care of his property which he obtained through Will dated 30.12.1979. Original Defendant No. 2, by taking advantage of the age of the plaintiff, got their name mutated in the revenue records and sold the land bearing Khasra No. 25/1, area 0.352 hectare to defendant No. 1 vide registered sale deed dated 3.9.1998, which is without jurisdiction and authority of law. The defendant No. 2 has no right to sell the property, owned by the plaintiff and merely on the 3 basis of recording of name in the revenue records, she does not confer any right over the suit property, therefore, the sale-deed executed on 04.09.1998 is non-est and does not confer any right over the suit property. The plaintiff is still in possession of the suit property, which has been sold by defendant No. 2 in favour of defendant No. 1.
3. It has been further contended that as soon as the plaintiff came to know about the sell of the suit property, he raised objection in the mutation proceeding, which was initiated in the office of Nayab Tahshildar, Nawapara, Rajim and on his objection, proceeding initiated before Nayab Tahshildar, Raim was closed on 29.07.1999, as such, the name of defendant No. 1 could not be recorded in the revenue records, till today.
4. The suit property is agricultural land and the plaintiff is still doing agricultural work on the suit property and on the basis of registered sale deed dated 3.9.1998 executed by defendant No. 2 in favour of defendant No. 1, the defendant No. 1 has made an attempt to interfere with the peaceful possession of the plaintiff over the suit land and defendant No. 1 has tried to remove the plaintiff from the suit land on the basis of registered sale deed executed between defendant No. 2 & defendant No. 1, which necessitated him to file a suit for declaration of title and permanent injunction before the trial Court.
5. The defendant No. 1 has filed a written statement specifically denying the fact that plaintiff is title holder and possession holder of the suit property. It is also denying that the plaintiff's father was managing the suit property, when the plaintiff was minor. It has also been averred that the defendant No. 1 has purchased the suit property from defendant No. 2 through registered sale-deed dated 3.9.1998, therefore, it cannot be said that the aforesaid sale is not in accordance with law, thus, the sale has been done in accordance with law, which does not call for any interference. It is specifically denied that the plaintiff was doing agricultural operation on the suit land. The defendant No. 1 has constructed boundary wall and utilized the land for the nistari purposes and, therefore, no cause of action arises in 4 favour of the plaintiff. It has also been stated that suit is time barred as the suit has not been filed within the stipulated period under the law and prays for rejection of the plaint.
6. Defendant No. 2 has filed written submission denying the allegations made in the plaint by stating that the plaintiff is not title holder and possession over the suit land admeasuring 14.90 acres, which is an ancestral property and which has been duly partitioned and divided into three equal shares and name of aforesaid three share holders i.e. Tulsibai, Basantkumar & Chandrikaprasad have been recorded in the revenue records separately. The other amenities attached with the property i.e. residential house have also been partitioned between the legal representative of late Shivcharan Sahu. It is also stated that the Will as framed and filed by the plaintiff is forged and fabricated, as the alleged Will is said to have been executed in the year 1979 whereas the partition has been taken place in the year 1988-1989. It is also contended that at the time of partition father of the plaintiff was also present and he has not raised any objection and for the first time he has taken shelter of the will where the suit is time barred and would pray for rejection of the suit.
7. On the pleadings of the parties, learned trial Court has framed as many as seven issues. Issue Nos. 1, 2 and 4 which are just and proper and are extracted below:
क्रमममांक वमद ववषय. वनिष्कषर .
1/ क्यम ममृतक वशिवप्रसमद समहह आत्मज मयमरमम समहह
एवमां रममबमई पत्निनी शनीरमम समहह निने गमम ढढ लनिम, तहसनील अभनिपढर ससस्थित क्रमशिशः खसरम निनबर-
225, 324, 402, 467, 474, 51/1, 25/1, 81/1 एवन 02 कढल रकबम-14.90 "निहहीं" ।
एकड़ तस्थिम गमम ढढ लनिम ससस्थित आठ कमरने कम मकमनि उससने लगने चमर मवनेशिनी ककोठने परसमद, बमडनी ब्यमरम कने समांबमांध मम वदनिममांक 30/11/79 कको वमदनी कने पक्ष मम वसनीयतनिममम वनिष्पमवदत कर, वमदनी कको उक्त समांपतत्ति कम सवममनी घकोवषत वकयम?
2/ क्यम गमम ढढ लनिम ससस्थित ख०निमां० 25/1 रकबम "निहहीं" ।
50.253 हने० कने समांबमांध मम प्रवतवमदनी क्रमममांक 2 दमरम प्रवतवमदनी क्र० 1 कने पक्ष मम वकयम गयम पनजनीकमृत ववक्रय निममम वद० 4/9/98 अववैध हवै?
3/ ............. .......
4/ क्यम वमद समय बमतधत हवै? "हमहाँ" ।
8. The plaintiff to substantiate his stand by submitting the Will dated 30.12.1979 (Ex.P-1 i.e.) has examined three witnesses namely Kuldeep Sahu (PW-1), Radheshyam Sahu (PW-2) and Swatantrapal Singh Thakur (PW-3) son of the attesting witness whereas the defendant No. 1 has not examined herself but examined her husband namely Shriyansh Jain (DW-1). The defendant No. 2 has examined one Omprakash Sahu as DW 2 and filed document Ex. D/1 extract of the mutation register for the year 1978/79, Kistbandi Khatouni form B/1 as Ex. D/2. The plaintiff examined himself as PW-1 wherein he has stated that Will has been executed in his favour and in the cross- examination, he has stated that the will was received from his Aunt namely Tulsi Bai in the year 1998. He has admitted in the cross- examination that he has not filed any copy of application filed in the mutation proceedings along with the plaint. He has denied that he is not aware that the property belonging to his grand-father has already been partitioned, and it is ancestral property. He has also denied that Tulsi Bai has sold the property to defendant No. 1, which she has received being legal heir. He has also denied that Tulsi Bai is in possession of the suit land prior to 1995, which she has sold to defendant No. 1 - Aneeta Jain.
9. The plaintiff examined Radheshyam as PW/2 who in examination in chief recorded by way of affidavit has stated that on 30.12.1979 Shiv Prasad and Rambati Bai has written will at village Dhulana through their counsel and thereafter he has gone to Nayapara for getting it typed, subsequently he has given to the counsel at Village Dhulana. Since PW/2 Radheshyam was not the witness of the will therefore, the defendant has raised his objection with regard to evidence adduced by him regarding execution of will. Learned trial Court has 6 accepted the said objection by observing that there is no signature of this witness nor will has been produced from his possession, as such, he has not allowed the document to be exhibited. The witness was extensively cross-examined by defendant No. 1. The witness admitted that when will was ready and documentation was done he was present. He has also stated that Askaran Sahu who was witness in the will was also present. He has stated that after execution of the will it has been given to Shiv Prasad Sahu. The witness has voluntarily said that Bhuwan Lal Mishra has prepared the draft in a blank paper in his own handwriting, and thereafter, he has taken it for typing. The witness was also cross-examined by Defendant No. 2 and he has admitted that in the will the counsel has not put his signature. He is not aware that Rambati expired on 21st August 1978 or not. He has denied that the will has been fraudulently prepared on 30.12.1979. He has also stated that he has not produced any registration certificate with regard to functioning as Munsi of Bhuwan Lal Mishra, Advocate.
10. The plaintiff has also examined Swatantra Pal Singh S/o Chandrabhan Singh PW/3 who was examined in examination in chief has stated that he is aware of the signature of his father. Since, he was not party to the document nor witness nor put his signature, objection was raised by the defendant No. 1 with regard to exhibition of the document. Learned trial Court considering the objection has recorded that will was executed on 30.12.1979, whether the will is acceptable or not can be decided at time of final judgment only. Only for the purpose of identification will has been marked as exhibit P/1. The witness was extensively cross-examined by defendant No. 1 wherein he has admitted that the plaintiff being neighbour of his father they have good relationship. He has also stated that he has not filed any document wherein his father has put signature.
11.The defendant No. 1 has not examined himself but her husband Shreyansh Jain has been examined through his affidavit before the learned trial Court. He has reiterated the stand taken by him in the written statement. The witness was cross-examined wherein he has stated that he has given the sale consideration to Tulsi Bai. He has 7 also admitted that the agreement to sale was executed in his house at Nayapara, Rajim.
12. Defendant No. 2 examined Omprakash Sahu as DW/2 who has stated that Rambati was expired in 1978 and alleged will was executed on 30.12.1979, as such, the will is forged one. This case has been filed just to harass defendants. He has also stated that plaintiff has not made all the legal heirs of Ramvati as party to the case therefore, suit is liable to be dismissed on count of non joinder of necessary party. The witness has exhibited documents copy of the mutation register Ex.D/1 wherein legal heirs of Ramvati has been recorded and Ex.D/2 revenue record. The witness was cross- examined by the plaintiff wherein he has denied that he has received the sale consideration. He has voluntarily stated that Tulsi Bai inherited the property from her father Shiv Prasad who has executed sale deed. He has denied though despite the knowledge of the fact that the will has been executed with regard to the suit property, he has deliberately executed the sale deed. He has reiterated that Shiv Prasad has never executed the will.
13. The learned trial Court after appreciating the evidence material on record that has dismissed the suit. Learned trial Court while dismissing the suit has recorded a finding that in Ex.D/1 date of death of Ramvati has been shown as 15.05.1979 whereas will has been executed on 30.12.1979 i.e. Ramvati expired prior to the date of execution of will. It means will has not been executed by the testator. Burden of proof lies on the plaintiff with regard to execution of will but he has not proved the will in accordance with law, therefore, issue No. 1 whether the will has been executed or not? has been decided against the plaintiff. The learned trial Court while deciding Issue No. 2, whether sale deed executed by the defendant No. 2 in favour of defendant No. 1 with regard to property situated at Khasra No. 25/1 area 0.253 Ha is illegal, has examined the evidence and has recorded a finding that it is for the plaintiff to prove this fact. The plaintiff's witness Kuldeep has stated that Shiv Prasad was elder brother of his grand-father and Shivprasad has no son and has only 8 one daughter namely Tulsi Bai. He is aware that the daughter of Shivprasad has sold the property situated at village Dhulana Khasra No. 25/1 area 0.35 Ha to defendant No. 1 Anita Jain. Since the will has already been found to be doubtful therefore it has recorded the finding that the property has been inherited by Tulsibai, as such, her name has been directly recorded in revenue record Ex. D1 and D2. Learned trial Court has also recorded a finding that defendants have filed the order dated 21.02.1989 in revenue case wherein Tulsibai, Puleshwarbai, Chandrikabai, Gaytrishanti, Jambai, Shyambai, Jamunbai and Saroj have partitioned the suit property wherein Khasra No. 25/1 area 0.35 Ha has been received by Tulsibai along with other property of Shivprasad. The fact that Tulsibai sole daughter of Shivprasad as such it cannot be said that sale deed executed in favour of defendant No. 1 is illegal. Learned trial Court while deciding the issue of limitation has also held that the suit is barred by limitation and accordingly dismissed the suit. Being aggrieved with the said judgment and decree filed, the plaintiff has filed present appeal under Section 96 of the CPC.
14. Learned Senior Advocate Mr. H.B. Agrawal assisted by Ms. Preeti Yadav would submit that since will is 30 year old, therefore, presumption can be drawn in favour of the execution of the will. In support of his contention he has relied upon judgment of Hon'ble High Court of Kerla in case of Acharu vs Rapai and Others 1. He would further submit that it is not required for the plaintiff to prove the will because defendant has not taken defence with regard to proving of the will. He would further submit that it is not required for him to prove the will as it is 30 years old and presumption should have been drawn in favour of plaintiff and also considering the fact that attesting witnesses were not available but a person who is aware of the signature of the attesting witness has been examined, as such there is compliance under Section 69 of the Indian Evidence Act done, therefore, finding recorded by the trial Court is perverse and contrary to the law, as such deserves to be set aside.
15. Shri Parag Kotecha, learned counsel for respondents No. 1 to 9 1 1978 SCC Online Ker 153 9 would submit that learned trial Court has recorded a finding that will has been executed on 30.12.1979 and Ramvati expired on 15.05.1979 which was not rebutted by the plaintiff though it is incumbent upon the plaintiff to provide correct date of death of Ramvati to clear the clouds with regard to execution of will. He would further submit that learned trial Court has also recorded finding that the plaintiff has only examined son as he is aware of the signature of his father the attesting witness, but some admissible document has not been made available before the trial Court for comparison. In absence of any such exercise, it cannot be said that the finding recorded by the trial Court is perverse or contrary to record. To substantiate his submission he placed reliance upon the judgments of the Supreme Court in the matters of Janki Narayan Bhoir vs Narayan Namdeo Kadam 2 Ramesh Verma (D) through Lrs. v. Lajesh Saxena (D) by Lrs. And another 3 and would submit that the appeal may kindly be dismissed.
16. I have heard learned counsel for the parties and perused the record.
17. From the above stated facts following points emerged for adjudication by this Court (I) Whether the trial Court has committed illegality in not drawing presumption in favour of the plaintiff with regard to the existence of will it being 30 years old?
(ii) Whether learned trial Court was justified in recording a finding that the will is forged one despite any evidence adduced by the defendant with regard to existence of will?
18. Before adverting to the legal submission made by the parties, it would be expedient for this Court to extract relevant provisions which are applicable for deciding the present controversy raised in the appeal.
Section 63 of the Indian Succession Act, 1925 -
63. Execution of unprivileged Wills. --Every testator, not being a 12 soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall 2 (2003) 2 SCC 91 3 (2017) 1 SCC 257 10 execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(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 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.
Section 68 of the Indian Evidence Act, 1872
68. Proof of execution of document required by law to be attested.-- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Section 69 of the Indian Evidence Act, 1872
69. Proof where no attesting witness found.--If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
19.Learned Sr. Advocate for the appellant would submit that learned trial Court has committed illegality in not drawing presumptions under Section 90 of the Indian Evidence Act which reads as under:-
Section 90 of the Indian Evidence Act, 1872
90. Presumption as to documents thirty years old.--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested 11 by the persons by whom it purports to be executed and attested.
20. Learned Sr. Advocate for the appellant would submit that since attesting witness was not available, therefore, as per Section 69 of the Indian Evidence Act they have examined son of the attesting witness to prove that attestation of one attesting witness in his handwriting and signature of the person executing the document is in the hand writing of that person. As such there is compliance of Section 69 of the Indian Evidence Act. Therefore, the will is proved as per the provisions of Indian Evidence Act and Succession Act.
21. Learned counsel for the respondents would submit that the will has not been proved as attesting witness signature has not been established as per the procedure prescribed under the law and there was suspicious circumstance available with regard to execution of the will, the clouds have not been cleared by the plaintiff and the will is forged one.
22. From the materials brought on record it is quite vivid that will was executed on 30.12.1979 whereas in Ex.D1 and 2, death of the expectant Ramvati has been shown 15.05.1979. This was not cleared by the plaintiff by producing relevant document to demonstrate that the will has been executed prior to the death of Ramvati. Even witness PW/2 Swantantra Singh who is son of the plaintiff has not produced any document for comparison between the signature of the attesting witness who has put signature on the will and from other admissible documents to fulfill the requirement of the provisions of Section 69 of the Indian Evidence Act.
23. Section 69 of the Indian Evidence Act has come up for consideration before the Hon'ble Supreme Court in Babu Singh and Others vs. Ram Sahai 4 wherein considering the facts has held as under:-
"12. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender.
4 2008 (14) SCC 754 12
13. Section 69 of the Act reads, thus :
"Section 69Proof where no attesting witness foundIf no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person."
14. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
15. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved."
24. Even the witness Kuldeep Sahu while examining himself has nowhere stated that at the time of execution of the will testastor Ramvati was heart and healthy and was capable to execute the will. The witness Kuldeep Sahu has stated that at the time of execution of will he was 5-6 years old and he was told by other persons that Shivprasad Sahu has executed the will in his favour. The witness was cross-examined by defendant No. 2 and in his cross-examination he has stated that he is not aware that Ramvati expired prior to 1979 or not. Thus, this creates clouds which has not been cleared by the plaintiff.
25. The contention raised by the learned Sr. Advocate for the appellant that as the will is 30 years old, as per Section 90 of the Indian Evidence Act presumption must have been drawn in favour of the plaintiff is not acceptable, the will has to be proved as per the prove of execution of documents required by law to be attested. Hon'ble Supreme Court in case of Bharpur Singh and Others vs. Shamsher Singh 5 has examined this issue and has held as under:-
5 (2009) 3 SCC 687 13 "19. The provisions of Section 90 of the Indian Evidence Act keeping in view the nature of proof required for proving a Will have no application. A Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Indian Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence."
26. The said judgment has again followed by the Hon'ble Supreme Court in case of M.B. Ramesh vs. K.M. Veeraje Urs. 6 has held as under:-
"17. At the same time we cannot accept the submission on behalf of the respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872 ('Evidence Act' for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh Vs. Shamsher Singh reported in 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act."
27. The Hon'ble Supreme Court in case of Ramesh Verma (D) Tr. Lrs (Supra) has examined issue with regard to execution of will and has held that even in case where opposite party does not specifically deny execution of document in written statement it is for the propounder of the will to show by satisfactory evidence that will was signed by the testator and that testator at the relevant time was in sound and disposing state of mind and he understands the nature and effect of disposition and put his signature to document on his own free will. Hon'ble Supreme Court in para 13 to 16 of the judgment has held as under :
"13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and 6 (2013) 7 SCC 490 14 disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
14. In Savithri v. Karthyayani Amma reported as (2007) 11 SCC 621 at page 629, this Court has held as under:-
"A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine."
15. It is not necessary for us to delve at length to the facts of the matter as also the evidence adduced by the parties before the High Court. Suffice it to note that the execution of the Wills has to be proved in accordance with Section 68 of the Indian Evidence Act.
16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court."
28. Learned trial Court while exhibiting the will has made certain 15 reservations and has ordered that will is said to have been exhibited as Ex.P/1 only for the purpose of identification which does not mean that will has been proved in accordance with law. This observation made by the learned Trial Court was in accordance with provisions of Section 68 of the Evidence Act, despite this the plaintiff has not made any attempt to prove the will and has not cleared the suspicious circumstances reflected during the evidence brought on record. It is well settled position of law that merely exhibition of the document does not amount to prove of the document and it does not dispense with for proving the document in accordance with law. Hon'ble Supreme Court in LIC of India and Anr vs Ram Pal Singh Bisen 7 has held as under:-
"24.Records do not reveal that any such procedure was adopted either by the appellants or by the Trial Court to prove the documents filed by the appellants and mark them as Exhibits. Thus, no advantage thereof could be accrued to the appellants, even if it is assumed that said documents have been admitted by respondent and were then exhibited and marked.
25.No doubt, it is true that failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence, which the appellants have miserably failed to do. Appellants, even though a defaulting party, committed breach and failed to carry out a legislative imposition, then had still to convince this Court as to what was the just cause for doing the same. Thus looking to the matter from any angle, it is fully established that appellants had miserably failed to prove and establish their defence in the case."
29. From the above stated factual matrix of the case, legal position it is quite vivid that the plaintiff has not been able to prove the will as per provisions of Sections 68 and 69 of the Indian Evidence Act and Section 63(C) of the Indian Succession Act. The learned trial Court has recorded clear finding that plaintiff has not been able to prove the will in accordance with law and Tulsi Bai has sold the suit property which has been received by her in partition, after appreciating the evidence, material on record which are neither perverse nor contrary to the law warranting interference by this Court. Accordingly, the first appeal is liable to be and is hereby dismissed. The interim order 7 2010 AIR SCW 1900 16 passed by this Court also stands vacated. The appellant has also filed an application under Order 41 Rule 27 CPC for bringing the certain documents on record mainly renumbering list of Khasra No., application for mutation, application submitted before Nayab Tahsildar on 04.01.2005 raising objection with regard to mutating name of other persons, application moved on 10.10.2004 and 25.10.2004 before Nayab Tahsildar, Nayapara for recording name of appellant due to death of Kuntibai on the strength of will order sheets of Additional Collector, Raipur, stay order dated 10.08.2015 passed by the Nayab Tahsildar, Nayapara and other documents by stating that these documents are necessary for just decision of the case and be taken on record. Some of the documents which were in existence before judgment and decree passed 28.06.2007 but has not been filed before the trial Court. But no reason whatsoever has been assigned in the application nor reason for delay has been explained. Even the very much requirement of permitting the additional document to be taken on record is the relevancy of the document, therefore, is no whisper over relevancy of the document in the application. Even bare perusal of the document it is quite vivid that it does not indicate any relevancy to examine the legality of the will which was the main foundation of the plaintiff for claiming declaration of title and injunction, therefore, application under Order 41 Rule 27 CPC is rejected on the count of no relevancy of the document and for delay in filing the application.
30. A Decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge amita/deshmukh