Chattisgarh High Court
Satyaprakash Sahu vs Natthulal Sahu on 1 July, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 23
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 27-04-2022
Delivered on 01-07-2022
SA No. 153 of 2021
Keshav Prasad Sahu S/o Lalta Prasad Sahu Aged About 62 Years
Caste- Sahu, R/o Village Pendra, Police Station And Tehsil-
Pendra, District- Bilaspur, Chhattisgarh, Now-Gaurella-Pendra-
Marwahi, Chhattisgarh
---- Appellant/defendant No. 3.
Versus
1. Natthulal Sahu S/o Shri Lalta Prasad Sahu Aged About 64 Years
Caste- Sahu, R/o Village Pendra ( Behind Maszid), Police Station
And Tehsi- Pendra, District- Bilaspur, Chhattisgarh, Now- Gaurella-
Pendra-Marwahi, Chhattisgarh (Defendant No. 2)
2. Satyaprakash Sahu S/o Shri Lalta Prasad Sahu Caste-Sahu, R/o
Village Pendra, Police Station And Tehsil- Pendra, District-
Bilaspur, Chhattisgarh, Now- Gaurella-Pendra-Marwahi,
Chhattisgarh (Plaintiff)
3. Smt. Rampyari Sahu (Deleted) As Per Honble Court Order Dated
21-04-2022.
4. Badriprasad Sahu S/o Shri Lalta Prasad Sahu Aged About 59
Years Caste- Sahu, R/o Village Pendra, Police Station And Tehsil-
Pendra, District- Bilaspur, Chhattisgarh, Now- Gourella-Pendra-
Marwahi, Chhatisgarh (Defendant)
5. Omprakash Sahu S/o Shri Lalta Prasad Sahu Aged About 50 Years
Caste- Sahu, R/o Village Pendra, Police Station And Tehsil-
Pendra, Police Station And Tehsil- Pendra, District- Bilaspur,
Chhattisgarh, Now- Gaurella- Pendra-Marwahi, Chhattisgarh
(Defendant)
6. Smt. Kiran Sahu W/o Shri Bholaprasad Sahu Aged About 57 Years
Caste- Sahu, R/o Gondpara, Near Kamal Lodge, Bilaspur, District-
Bilaspur, Chhattisgarh, Now- Gaurella-Pendra-Marwahi,
Chhattisgarh (Defendant)
7. Smt. Rajni Sahu W/o Shri Jaiprakash Sahu Aged About 54 Years
Caste- Sahu, Caste- Sahu, R/o Telipara, Behind City Kotwali,
Bilaspur, District- Bilaspur, Chhattisgarh, Now-Gaurella-Pendra-
Marwahi, Chhattisgarh (Defendant)
8. Smt. Seema Sahu W/o Shri Ramkishore Banoude, Aged About 50
Years Caste- Sahu, R/o Juni Line, Shukrawari, Gandhi Putla Ke
Pass, Nagpur, (Maharastra) (Defendant)
9. Smt. Rekha Sahu W/o Shri Surajprasad Sahu Aged About 44
Years Caste- Sahu, R/o Power House, Behind Janta Market,
Bhilai, District- Durg, Chhattisgarh (Defendant)
Page 2 of 23
10. State of Chhattisgarh, Through- Collector, District- Bilaspur,
Chhattisgarh, Now- Gaurella-Pendra-Marwahi, Chhattisgarh
---- Respondents
and
SA No. 250 of 2020
Satyaprakash Sahu S/o Shri Lalta Prasad Sahu Aged About 43
Years R/o Village - Pendra, Police Station And Tahsil Pendra,
District Bilaspur Chhattisgarh. Present District Gaurella Pendra,
Marwahi Chhattisgarh. (Plaintiff)
---- Appellant/ plaintiff
Versus
1. Natthulal Sahu S/o Shri Lalta Prasad Sahu Aged About 64 Years
R/o Village Pendra (Behind Of Maszid), Police Station And Tahsil
Pendra, District : Gaurela-Pendra-Marwahi (Defendant No. 2)
2. Deleted (Smt. Rampyari Sahu) As Per Hon'ble Court Order Dated
21-04-2022.
3. Keshavprasad Sahu S/o Late Shri Lalta Prasad Sahu Aged About
62 Years Caste Sahu, R/o Village Pendra, Police Station And
Tahsil Pendra, District Bilaspur Chhattisgarh. Present District
Gaurella Pendra Marwahi Chhattisgarh. (Defendant)
4. Badriprasad Sahu S/o Late Shri Lalta Prasad Sahu Aged About 59
Years Caste Sahu, R/o Village Pendra, Police Station And Tahsil
Pendra, District Bilaspur Chhattisgarh. Present District Gaurella
Pendra Marwahi Chhattisgarh (Defendant)
5. Omprakash Sahu S/o Late Shri Lalta Prasad Sahu Aged About 50
Years Caste Sahu, R/o Village Pendra, Police Station And Tahsil
Pendra, District Bilaspur Chhattisgarh. Present District Gaurella
Pendra Marwahi Chhattisgarh. (Defendant)
6. Smt. Kiran Sahu W/o Shri Bholaprasad Aged About 57 Years
Caste - Sahu, R/o Gondpara, Near Kamal Loz, Bilaspur, District
Bilaspur Chhattisgarh. (Defendant)
7. Smt. Rajani Sahu W/o Jaiprakash Sahu Aged About 54 Years
Caste - Sahu, R/o Telipara, Behind Of City Kotwali, Bilaspur,
District Bilaspur Chhattisgarh. (Defendant)
8. Smt. Seema Sahu W/o Shri Ramkishore Banaude Aged About 50
Years Caste - Sahu, R/o Junilai, Shukrawari, Near Gandhi Putla
Nagpur Maharashtra. (Defendant)
9. Smt. Rekha Sahu W/o Shri Surajprasad Sahu Aged About 44
Years Caste Sahu, R/o Power House, Behind Of Janta Market,
Bhilai, District Durg Chhattisgarh. (Defendant)
10. State of Chhattisgarh Through Collector, Bilaspur, District Bilaspur
Chhattisgarh. Present District Gaurella Pendra Marwahi.
Chhattisgarh
---- Respondents
Page 3 of 23
For Appellant in SA No.153 of 2021 : Mr. (Dr.) Nirmal Kumar Shukla,
Sr. Advocate along with Ms.
Rasika Soni and Mr. Yogendra
Chaturvedi, Advocates.
For Appellant in SA No.250 of 2020 : Mr. Ashok Soni, Advocate.
For Respondent No. 1 : Mr. Manoj Paranjpe and Mr. Faiz
Kazi, Advocates.
For State : Mr. Ravi Pal Maheshwari, P.L.
Hon'ble Shri Justice Narendra Kumar Vyas
CAV JUDGMENT
1. Since the identical issue involves in both the appeals, they are heard analogously and are being disposed of by this common judgment. This Court has issued notice to the respondents and notice has been served upon respondents No. 1, 2, 4, 5, 6, 7, 8, 9. Respondent No. 3 expired and on behalf of respondents 1, 7 & 8 have made their appearance through their respective counsel.
2. Both the appeals have been admitted by this Court on 08.03.2022 on the following substantial question of law:-
"Whether the First Appellate Court was justified in reversing the well reason finding recorded by the trial Court with regard to proof of Will."
3. For sake of convenience, parties herein will be referred to as per their status shown in Civil Suit No.50-A/2021 before the trial court.
4. Appellant/defendant No.3- Keshav Prasad Sahu has filed Second Appeal No.153 of 2021 being aggrieved by the impugned judgment and decree dated 5-2-2020 in Civil Appeal No. 2-A/2019 passed by the learned Additional District Judge, Pendra Road, District- Pendra Road arising out judgment and decree dated 26-10-2018 passed by Civil Judge, Class-II, Marwahi Circle Court, Pendra Road, District Bilaspur, in Civil Suit No. 50-A/2012, whereby the civil appeal preferred by defendant No.2/respondent No.1 has been partly Page 4 of 23 allowed and judgment and decree dated 26-10-2018 passed by the trial court has been set aside.
5. Appellant/plaintiff- Satyaprakash Sahu has filed Second Appeal No. 250 of 2020 being aggrieved by the impugned judgment and decree dated 5-2-2020 in Civil Appeal No. 2-A/2019 passed by the learned Additional District Judge, Pendra Road, District Bilaspur arising out judgment and decree dated 26-10-2018 passed by Civil Judge Class-II, Marwahi Circle Court, Pendra road, District Bilaspur, in Civil Suit No. 50-A/2012, whereby the civil appeal preferred by defendant No. 3 has been allowed and judgment and decree dated 26-10-2018 passed by the trial court has been set aside. In this appeal, he would pray for setting aside the judgment and decree passed by the First Appellate Court and would also pray for restoration of the judgment and decree passed by the trial Court.
6. Brief facts, as reflected from the record are that Satyaprakash Sahu, appellant/plaintiff in Second Appeal No. 250 of 2020 and respondent No.2 in Second Appeal No. 153 of 2021 has filed a Civil Suit bearing No. 50-A/2012 before the learned Civil Judge, Class-II, Marwahi, Camp Court, Pendra Road, District- Bilaspur (CG) for declaration of title, permanent injunction and partition mainly contending that the plaintiff and respondents belong to same family and Defendant No.1 Smt. Rampyari Sahu is the wife of late Lalta Prasad Sahu and rest of them are their daughters and sons respectively. Plaintiff and defendants No.2 to 9 are brothers and sisters. Genealogical tree has also been described in the pleadings made in the plaint. It has also been contended that Late Lalta Prasad Sahu is having title of property of suit land bearing Khasra No.2542/02, 2543/06 admeasuring area 0.0648, 0.352, total 01 hectare situated at village Pendra Patwari Halka No.01. It is an ancestral property and as per the family tradition, all the properties are distributed amongst all the family members.
7. Defendant No.3- Keshav Prasad Sahu with intention to possess the suit land started construction over the suit property whereas the said Page 5 of 23 property belongs to plaintiff and other defendants. It has been further contended that no partition has been taken place, therefore, taking its advantage defendant No. 3 had started construction over the suit property, as such, FIR has also been lodged by the plaintiff. Since there was no partition, therefore, property has to be distributed amongst all the family members equally. As such, present suit has been filed for declaration of title, equal partition between the plaintiffs and defendants, for grant of permanent injunction and restraining defendant No.3 to sell out the suit property.
8. Defendant No.2-Natthulal Sahu has filed written statement admitting the fact of genealogy, relationship between the plaintiff and defendants. It has also been stated in the written statement that the suit property is self-acquired property of late Lalta Prasad Sahu and he has not executed Will on 15-12-2008. It has been clarified that as per Will executed on 2-8-1999, entitlement of portion over the suit property has already been finalized. It has been specifically denied that on 15-12-2008 registered Will has been executed by late Lalta Prasad Sahu, prior to three months of death of his father, his father was ill, unable to understand the things and he expired on 17.12.2008 when he was bed-ridden. It has also been contended that as per distribution of property as provided in the Will dated 02.08.1998, the suit property has also been recorded in the name of plaintiff in the revenue records and he is in possession of the suit property. It has been further contended that on the basis of Will his father has given to him 0.40 acres of land and 0.23 acres of land each defendants namely Smt. Rampyari, Badri Prasad, Satyaprakash, Natthu Prasad and Ompraklash. It has been further contended that defendant No.3 has already constructed gate on his share which he has received from the earlier Will. It has also been contended that Late Lalta Prasad Sahu has already executed a Will on 2-8-1999 and accordingly partition has been done, but the plaintiff has deliberately not mentioned about the earlier Will and would pray for dismissal of the suit.
Page 6 of 239. Defendant No.3- Keshav Prasad Sahu has filed his written statement denying the allegations made in the written statement mainly contending that late Lalta Prasad Sahu, who is father of defendant No.3 during his lifetime has given consent letter for construction on 40 decimal of land and accordingly he is utilizing the same wherein plaintiff, brothers and mother are unnecessarily interfering. It has also been contended that the defendants No.1 to 4 and plaintiff have filed the case before the Tahsildar, Pendra for grant of stay on the construction which has been granted and thereafter, report was submitted by the Patwari and on enquiry the stay was vacated. As the defendant has constructed road with object of development of the colony, accordingly, plaintiff and defendant have settled their dispute and thereafter, the matter was filed before the Tahsildar for partition and mutation. The defendant has accepted the notice and deliberately did not appear in partition and Tahsildar has passed an order on 28-5-2012 in which the name of late Lalta Prasad Sahu was deleted and accordingly, the names of legal heirs respondents have been incorporated in Khasra No. 2542/2 area 0.15 acres and Khasra No.2543/2 area 1.45 acres and Khasra No. 25543/6 area 0.87 acres of land out of which 0.40 acres of land is in possession of defendant No.3 and accordingly, 0.40 acres of land was recorded in the name of defendant No. 3 and rest of the property was recorded in the name of the plaintiff, and defendants No.1,2,4,5 to 8 and 9. The suit has been filed only to harass the present defendant. Presently, defendant No.3 is in possession of the suit property with consent of their father since 1990 and would pray for dismissal of the suit.
10. The plaintiff has also filed an application for grant of injunction which was rejected by the learned trial court vide its order dated 25-07- 2015. On the pleadings of the parties, earlier learned trial court has framed as many as six issues which have been subsequently modified. The relevant issues for deciding the lis between the parties have been extracted as under:-
Page 7 of 23"1. Whether the plaintiff, defendant No.1 and defendant No.3 to 9 are title holders of the suit property as per will executed on 15-12-2008?
2. Whether the plaintiff is entitled to get partition of the suit property?
11. The plaintiff to substantiate his averment in the plaint, has exhibited the documents namely Will dated 15-12-2008 (Ex.P/1), Map (Ex.P/2), Kirtibandi Katoni (ExP/3), Khasra Nos. (Ex.P/4, 5 and 6), Police information dated 15-12-2011 (Ex.P/7). Plaintiff himself was examined as PW/1 and Pawan Agrawal (PW/2). The plaintiff in examination in chief has reiterated the pleadings made in the plaint and contended that his father has executed registered Will on 15- 12-2008 and according to the Will he is in possession of the suit property. The witness was cross examined by the defendant No.2 wherein he has admitted that the partition was taken place during life time of his father in the year 2007-2008, but he has not produced any document before the court. He has stated that his sister Smt. Kiran Sahu has constructed the house over the suit land in the year 2005. He has also admitted that in the land his brother Badri Prasad Sahu has also constructed the shop which has been given on rent. He has also admitted that he is also constructing in 75 x 25 sq.ft. of the property and he has also admitted that no permission from Nagar Panchayat, Pendra was obtained. He has also admitted that Nagar panchayat Pendra issued notice to him which is Ex. D/2. He has further stated that the Will was executed in front of his father. He has stated that his father has gone to Tahsil Office for execution of Will along with him, his brothers and sisters. He has further stated that he has also gone in Auto. He has also admitted that he has not produced any document with regard to giving his share to Natthulal Sahu. He has stated that in village Kodagarh mill was given in partition. He has stated that in Clause
(iii) of his affidavit, after giving partition to Natthulal Sahu, his father has shown his willingness to partition the property that has been contended in the affidavit. This was done in the year 2007 by his Page 8 of 23 father. He has stated that his father died on 17-12-2008 and he was not in good health. It is denied that his father was incapable to move before 3 or 4 months of his death or his father was unable to speak. He has also denied that his father was unable to see. He has stated that Will was executed in the year 1999 and the account number of the suit property has been mentioned as Account number 1024 wherein Khasra number, the account number is also shown as 1024 (Ex.P/1). He has further admitted that in the Will mill portion given to him has been mentioned and he has also admitted that in view of the Will he has submitted for mutation before Nagar Panchayat on 16-2-2009 and paper publication was called in pursuance of the proceeding and his name has been recorded in the mill side share of the property. He has also admitted that on the basis of Will, he has not submitted any document with regard to mutation proceeding done by the Nagar panchayat on the mill side his share of suit property. He has also admitted that his father was residing with him in the house which is situated in front of temple. He has also admitted that he has denied that on the basis of Will executed on 15-12-2008 all the brothers have partitioned and they are in possession of the suit property. He has admitted that the map which is attached that Will is of the year 1999. He has also stated that he is not aware whether his father has prepared any map as per the Will by his father or not in the year 2008. He has also stated that his mother is residing with him. He has denied that Badri Prasa and Omprakash Sahu are residing with him and they are residing in the same house, but separately. This witness was extensively cross examined by defendant No.3, wherein he has admitted that in the share Keshav Prasad started construction and he is in possession of that land. He has admitted that all his brothers and sisters are residing in separate possession.
12. The attesting witness of the Will namely Pawan Agrawal (PW/2) was examined and in examination-in-chief by way of affidavit supported the case of the plaintiff. This witness was extensively cross- examined by defendant No.2 wherein he has admitted that he is Page 9 of 23 working with Keshav Sahu from 2007-2012 and again since 2014 working with him. He has stated that when he has come to mill, for the first time he saw his father in the office of Keshav Sahu. He has stated that the father of plaintiff has dictated the Will and the Will was hand written, subsequently it was got typed and he was unable to say who has written the Will and who has typed it. He has stated that he has not typed the Will. He has denied that late Lalta Prasad Sahu at the time of execution of the Will, was unable to see, he was sitting voluntarily but admitted that when he has gone for signing, Lalta Prasad was unable to move. He has admitted that before 2 or 3 days of execution of Will, Lalta Prasad was unable to sit or stand, but again he said that Lalta Prasad was unable to move. He has admitted that at the time of execution of the Will except the plaintiff and Natthu Prasad Sahu all defendants were present.
13. The defendants to substantiate their case have examined Natthu Prasad as witness No.1 (for defendant No.2), Shiv Prasad Sahu as witness No. 2 (for defendant No.2), Keshav Prasad Sahu as witness No.1 (for defendant No.3). Witness No.1 (for defendant No.2) Natthu Prasad exhibited the documents, order sheet of revenue case No. 311 of 2011 dated 31-12-2011(Ex.D/1) notice issued to plaintiff Satyaprakash Sahu (Ex. D/2), application submitted before the Tahsildar, Pendra dated 31-12-2011 (Ex.D/3), application submitted before the Sub Divisional Officer, Pendra Road (Ex.D/4), application for stay (Ex.D/5), application submitted by Keashav Sahu before Tahsildar on 18-1-2012 (Ex.D/6), application for issuance of contempt proceeding (Ex.D/7), reply submitted by Keshav Sahu (Ex.D/8), arguments dated 18-1-2012 ( Ex.D/9), notice for contempt date d 25-1-2012 (Ex.D/10), copy of receipt of application submitted by Natthu Prasad Sahu for stoppage of construction (Ex.D/11) and application submitted before the Chief Municipal Officer, Pendra Road for stoppage of construction (Ex.D/
12).
14. Witness No.1 (for defendant No.2) Nathhu Prasad examined himself and reiterated the stand that the property which has already been Page 10 of 23 partitioned in pursuance of settlement in the year 1999, accordingly the share has been granted and his father has executed the Will with the consent of all the persons in the year 1990. He has stated that he is in possession of the suit property which he has received on partition and his name has also been recorded in the revenue records. He has stated that he has not received any property except which he has received in the partition. This witness was extensively cross examined by the plaintiff. In the cross examination he has stated that he is running Aata Chakki at village Kodgarh since 20-22 years and he was living separately with the other members. He has stated that his father has done oral partition in the year 1994-95 and thereafter, written partition has been done, but he has not produced any document with regard to his written partition. He has also stated that after written partition his name was also recorded in the share and accordingly mutation has been issued in his favour. He has admitted that in the documents Ex.D/1 and D/3 all the family members were not party to the case. He has stated that he has not written anything about the Will because he has no information about the Will. He has also denied that when he was separated from family, his father has given his share. He has also denied that during lifetime of his father, before execution of Will he has not given any share to him.
15. Shiv Prasad Sahu (DW/2) in examination-in-chief has supported the case of the defendants. This witness was cross-examined wherein he has stated that before death of Lalta Prasad Sahu he has gone to Bilaspur and thereafter he met him on 10-15 days before his death, he was unconscious and was unable to see. He has further stated that he was working with Natthu Prasad Sahu for the last ten years. He has admitted that Lalta Prasad Sahu has separated Natthu Prasad Sahu after giving his share.
16. Keshav Prasad Sahu was examined himself as witness No.1 for defendant No.3 and exhibited documents i.e. Kistabandhi Kathauni (ExD/11), Khasra (Ex.D/12), Khasra No.2544 (Ex.D/13), Order passed by Tahsildar (Ex.D/14). This witness was cross examined Page 11 of 23 by the plaintiff wherein he has stated that defendant No.2 Natthu Prasad Sahu was separated from family members since 1995 and when he was separated from family his father has given to him the mill situated at village Kodagarh and clothes shop. He has stated that mill and clothes shop belonging to his father. He has further stated that all the family members live together, thereafter they are living separately and doing separate work. He has stated that his father executed the Will before his death. When the Will dated 15- 12-2008 was shown to this witness, then he has stated that the Will has been executed on 15-12-2008. He has stated that his father has given share to DW/2 Natthu Prasad Sahu, therefore, his father has not included at the time of execution of Will after death of his father. DW/2 Natthu Prasad Sahu is in possession of the suit property. He has stated that he has recorded his name in the land bearing 0.40 acres. He has stated that defendant No.2 has no right or share on the property in view of the Will. It has been further stated that subsequently rate of property has been increased, therefore, he started creating dispute. This witness was extensively cross examined by the defendant No.2 counsel wherein he has stated that he has moved an application before Tahsildar for recording his name on the property which has been given to him with consent of his father in the year 2012. He has further stated that his father has given 40 dismil of land in the year 1998 and he was satisfied. He has admitted that at the time of mutation proceeding, he has not submitted copy of the Will as his farther has given to him 40 decimal of land with consent. He denied that his father has executed the Will and later on he has stated that his father executed a Will wherein with regard to partition of property in the name of Natthu Prasad Sahu has been written. He has admitted that earlier Will was written by his father with full conscious and at that time he was running the shop and also going outside and how the transaction has been carried by him. He has voluntarily stated that the Will has also been executed by his father when he was in full conscious. He has also stated that he has taken his father to Bilaspur for medical Page 12 of 23 treatment. He has stated that his father was ill and he was undergoing medical treatment and prior to twenty days of death of his father, he had taken back his father to home as he was in serious condition. He has stated that parental house has been constructed by his father which is near to Sakti Mandir across the Talkies. He has stated that presently he is residing at Diet Colony near high school. He has stated that present he is residing near Petrol pump and both the houses have been constructed by his father. He has admitted that he was running saw mill. He has also stated that he is running rice mill also, but presently both the businesses have been closed. He has also admitted that Pawan Agrawal is working in his office. He has also stated that he has not produced any document with regard to self acquirement of both the houses. He has admitted that after recording his name, lease has been granted in his favour. He has also admitted that he was separated from family in the year 1990 after some property has been given to him and since then he is in possession over the suit property. He has stated that his father has given to him 40 decimal land i.e. one is through Will and second is through affidavit. He has denied that Ex.P/1, is a forged Will. He has denied that his father was unconscious stage and he was not capable of speaking. He has admitted that he cannot tell the name of the person who has written the Will. He has stated that he is unable to say that whether the photograph of his father annexed in the Will is latest or not, but he voluntarily says that it may be 4 - 5 years old. He has stated that he is not aware whether in subsequent Will the map has been annexed in the Will of 1999 or not.
17. Learned trial court after considering the evidence, material on record vide judgment and decree dated 26-10-2018 has held that the plaintiff, defendant No.1, 3 and 9 are the title holders of the suit property on the basis of Will dated 15-12-2008 and also granted permanent injunction restraining the defendant No.3 from interfering in the possession of plaintiff. Learned trial Court vide its judgment and decree dated 26-10-2018 has held that the plaintiff Page 13 of 23 and defendants No. 1, 3 to 9 are joint owners of the suit property. They are entitled to get equal share of the suit property. Being aggrieved and dissatisfied with the aforesaid judgment, Natthu Prasad Sahu (defendant No. 2) has preferred first appeal under Section 96 of CPC mainly contending that the learned trial court without considering the fact has relied upon the Will dated 15-12- 2008 whereas the map which has been annexed with Will is related to the Will of 1999 which shows that the Will is a forged one. It has been further contended that the trial court has relied upon the statement of plaintiff and defendant No.3, but no reason has been arrived to disbelieve the statement of defendant No.2 and recorded a perverse finding. He would further submit that the learned trial court has not taken into consideration of cross examination of plaintiff's witness Pawan Agarwal, who in the cross examination, could not support the case of the plaintiff, still judgment and decree has been passed which is a perverse finding, therefore, the judgment and decree passed by the learned trial court may kindly be set aside.
18. Appellant has filed an application under Order 41 Rule 5 of CPC, application under Order 41 Rule 27 of CPC and also application for condonation of delay in filing the appeal as there was some delay in filing the appeal. Learned trial court after hearing the parties, has condoned the delay in preferring the appeal vide its order dated 10- 1-2019 and admitted the appeal for hearing and vide judgment and decree dated 15-12-2020 partly allowed the appeal and modified the judgment and decree by granting 1/10 share to the plaintiff and defendants No. 1 to 9 of the suit property in place of 1/9 share as granted the learned trial Court. Being aggrieved with this, appellant Keshav Prasad Sahu has preferred Second Appeal No.153 of 2021 and plaintiff Satyaprakash Sahu has preferred Second Appeal No. 250 of 2020 challenging the judgment and decree dated 5-2-2020 passed by the First Appellate Court.
19. Learned Sr. Advocate Mr. (Dr.) N.K. Shukla, assisted by Ms. R. Soni and Mr. Yogendra Chaturvedi, Advocates would submit that the Page 14 of 23 defendant has filed the Second Appeal No. 153 of 2021 mainly contending that the learned First Appellate Court has erred in reversing well reasoned finding of the trial court regarding proof of Will (Annexure P/1). He would further submit that the Will was registered Will and only suspicious circumstance was that he died after a day of execution of the Will as it is a registered Will duly proved by the witness as per the provisions of Section 63 of the Indian Succession Act and no material contradiction was placed on record with regard to proving of the Will in accordance with the law, therefore, the learned first appellate court has committed illegality in well reasoned finding recorded by the learned trial Court. He would further submit that the substantial question of law be answered in favour of the appellant. He would further submit that learned trial court while recording the finding that Will has not been proved, has not assigned any reason, therefore, the judgment and decree passed by learned First Appellate Court deserves to be set aside.
20. Mr. Ashok Soni, learned counsel for the appellant in Second Appeal No. 250 of 2020 would submit that the finding recorded by the learned First Appellate Court that the Will is not proved in accordance with law is erroneous finding on the count that attesting witness Pawan Agrawal was working with Keshav Prasad Sahu. This cannot be a ground to disbelieve the credibility of the witness. He would further submit that the property was self-acquired property of Lalta Prasad and defendant No.2 Natthu Prasad Sahu has been already separated from the family after getting his share, therefore, the learned first appellate court was not justified in reversing the finding of the trial Court, granting the share to the extent of 1/9 share to the plaintiff, defendants No. 1 & 3 to 9 excluding defendant No. 2, therefore, he would submit that the judgment and decree passed by the learned first appellate court is erroneous, suffers from perversity and deserves to be set aside and would submit that the judgment and decree passed by the trial court be kindly restored.
21. On the other hand, Mr. Manoj Paranjpe, learned counsel for respondent No.1 would submit that the property in question is the Page 15 of 23 self-acquired property of Lalta Prasad and being a son and class-1 heir he is entitled for 1/10 share in the property left by Lalta Prasad Sahu. His father Lalta Prasad during his lifetime has affected the partition and 0.23 decimal of land out of 2.50 acres of Khasra No. 2542/2, and 2542/6 fell in share of Natthu Lal Sahu and he also mutated his name in revenue records. It was categorically denied that apart from 0.23 decimal of land, any other property of Natthulal Sahu was executed in favour of Natthulal. He would further submit that no Will was executed on 15-12-2008 and the Will on the basis of which the suit was filed is a forged document. After two days from the execution of the Will, the testator died on 17-12-2008. It was also averred that Lalta Prasad at the relevant time was ill and was not fit state of mind. He would further submit that after considering all the aspects of the matter the first appellate court has passed the judgment and decree which does not call for any interference by this court and would submit that the substantial question of law framed by this Court be answered against the appellant/defendant No. 3.
22. I have heard learned counsel for the parties and perused the records of both the courts below.
23. For better understanding the manner and procedure required for proving the Will, it is expedient for this court to extract Sections 63
(c) of the Indian Succession Act, 1925 and 68 of the Indian Evidence Act which read as under:-
"Section 63(c) of the Indian Succession Act, 1925- 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.Page 16 of 23
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:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied".
24. From the records, evidence adduced before the trial Court, learned First Appellate Court has found following suspicious circumstances with regard to execution of the Will:-
(i) Learned trial court recorded a finding that in the Will it has been mentioned that Lalta Prasad was lying in the cot and the attesting witness PW/2 Pawan Agrawal has stated that Lalta Prasad was dictating the Will but he has not stated that who has subscribed the Will and who had typed it as it is in typed form, the attesting witness should have clarified this fact as per the law and it should be in the knowledge of attesting witness.
(ii) The Will has been executed on 15-12-2008 whereas the executant of the Will Lalta Prasad died on 17-12-2008.
(iii) The Will has been registered not in the office of the Registrar, but in the Sakti Mandir whereas Satya Prakash (PW/1) himself has deposed that Lalta Prasad was unable to move, therefore, how can he reach to Sakti Mandir.
(iv) The plaintiff has filed a copy of the order passed in the proceeding before the Tahsildar, wherein he has nowhere disclosed about the execution of the Will and in the original plaint before the trial court with regard to Will claiming his right over the Will subsequently, he Page 17 of 23 has bought this fact by way of amendment in the pleading which creates doubt when the plaintiff is projecting his case on the basis of Will, why he has not taken at the first instance.
(v) Defendant No.3 who is supporting the execution of the Will has stated that his father was ill and was unable to move and the treating Doctor has advised to take him back to the house, therefore, it cannot be presumed that Lalta Prasad was mentally health and was capable of understanding the execution of the Will.
(vi) The plaintiff has examined the attesting witness Pawan Agrawal who is an employee of the plaintiff and was closely related to plaintiff not with the testator that creates suspicious circumstances and the plaintiff has not placed any cogent evidence to dislodge the clouds over execution of the Will.
(vii) Learned trial Court while recording the finding that the Will has been proved, has not examined the execution of Will in the light of provisions of Section 63
(c) of the Succession Act and Section 68 of the Indian Evidence Act.
25. The learned trial court has recorded a finding that defendant No.2 was unable to rebut the Will (Ex.P/1) but has not examined the case in the light of the well settled position that it is for the propounder of the Will to prove the Will as per the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act. The learned trial court has also not examined the evidence already brought on record but only recorded a finding that the plaintiff's witness Pawan Agrawal (PW/2) has put his signature in the Will and the evidence of this witness remained unrebutted. The learned trial court has also not examined the Will (Ex.P/1) as per law laid down by Hon'ble Supreme Court in Kavita Kanwar Vs. Mrs. Pamela Mehta1 wherein it has been held as under:-
1 2020 SCC Online SC 464 Page 18 of 23 "29.2. In the given set-up, a basic question immediately crops up as to what could be the reason for the testatrix being desirous of providing unequal distribution of her assets by giving major share to the appellant in preference to her other two children. The appellant has suggested that the parents had special affection towards her. Even if this suggestion is taken on its face value, it is difficult to assume that the alleged special affection towards one child should necessarily correspond to repugnance towards the other children by the same mother. Even if the parents had special liking and affection towards the appellant, as could be argued with reference to the gift made by the father in her favour of the ground floor of the property in question, it would be too far stretched and unnatural to assume that by the reason of such special affection towards appellant, the mother drifted far away from the other children, including the widowed daughter who was residing on the upper floor of the same house and who was taking her care. In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; and it would be too unrealistic to assume that special love and affection towards one, maybe blue-eyed, child would also result in a person leaving the serving and needy child in lurch. As noticed, an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance. The appellant has failed to assign even a wee bit reason for which the testatrix would have thought it proper to leave her widowed daughter in the heap of uncertainty as emanating from the Will in question. Equally, the suggestion about want of thickness of relations between the testatrix and her son (respondent No.2) is not supported by the evidence on record. The facts about the testatrix sending good wishes on birthday to her son and joining family functions with him, even if not establishing a very great bond between the mother and her son, they at least belie the suggestion about any strain in their relations. Be that as it may, even if the matter relating to the son of testatrix is not expanded further, it remains inexplicable as to why the testatrix would not have been interested in making adequate and concrete provision for the purpose of her widowed daughter (respondent No.1).
29.3. The aforesaid factor of unexplained unequal distribution of the property is confounded by two major factors related with making of the Will in question: one, the active role played by the appellant in the process;Page 19 of 23
and second, the virtual exclusion of the other children of testatrix in the process. As noticed, an active or leading part in making of the Will by the beneficiary thereunder has always been regarded as a circumstance giving rise to suspicion but, like any other circumstance, it could well be explained by the propounder and/or beneficiary. In the present case, it is not in dispute that out of the three children of testatrix, the appellant alone was present at the time of execution of the Will in question on 20.05.2003. As noticed, at the relevant point of time, the appellant was admittedly living away and in a different locality for about 20-22 years, whereas testatrix was residing at the ground floor of the building and the respondent No.1 was at the first floor. Even if we leave aside the case of the respondent No.2 who was living in Shimla, there was no reason that in the normal and ordinary course, the testatrix would not have included the respondent No.1 in execution of the Will in question, particularly when she was purportedly making adequate arrangements towards the welfare of respondent No.1. In other words, if the Will in question was being made without causing any prejudice to the respondent No.1, there was no reason to keep her away from this process. Admittedly, the Will in question was not divulged for about three years. Therefore, the added feature surrounding the execution of the Will had been of unexplained exclusion of the respondent No.1 from the process.
26. Hon'ble the Supreme Court in Murthy Vs. C. Saradambal2 has held as under:-
(a) The date of the will (Ex-P1) is 04th January, 1978.
The testator E. Srinivasa Pillai died on 19th January, 1978, within a period of fifteen days from the date of execution of the will. Even on reading of the will, it is noted that the testator himself has stated that he was sick and getting weak even then he is stated to have "written" the will himself which is not believable. It has been deposed by PW2, one of the attestors of the will, that the will could not be registered as the testator was unwell and in fact, he was bedridden. It has also come in evidence that the testator had suffered a paralytic stroke which had affected his speech, mobility of his right arm and right leg. He was bedridden for a period of ten months prior to his death. Taking the aforesaid two circumstances into consideration, a doubt is created as to whether the testator was in a sound and 2 Civil Appeal No. 41270 of 2010 decided on 10-12-2021 Page 20 of 23 disposing state of mind at the time of making of the testament which was fifteen days prior to his death.
(b) No evidence of the doctor who was treating the testator has been placed on record so as to prove that the testator was in a sound and disposing state at the time of the execution of the will.
(c) The fact that the testator died within a period of fifteen days from the date of the execution of the will, casts a doubt on the thinking capacity and the physical and mental faculties of the testator. The said suspicion in the mind of the Court has not been removed by the propounder of the will i.e. first plaintiff by producing any contra medical evidence or the evidence of the doctor who was treating the testator prior to his death.
(d) In this context, it would be useful to place reliance on Section 63 of the Indian Succession Act, 1925 which categorically states that the testator has to sign on the will and the signature of the testator must be such that it would "intend" thereby to give effect to the writing of a will. Hence, the genuineness of the will must be proved by proving the intention of the testator to make the 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 the Court. In the instant case, there is no evidence as to whom the testator gave instructions to, to write the will. The scribe has also not been examined. It is also not known as to whether the assistance of an advocate or any other trustworthy person was taken by the testator in order to make the testament and bequeath the property to only the son of the testator.
(e) Apart from that, Section 63(c) of the Indian Succession Act, 1925, firstly states that the will has to be attested by two or more witnesses/attestators, each of whom should have seen the testator sign on the will in his presence, or has received from the testator, a personal acknowledgment of his signature on the will. Secondly, each of the witnesses shall sign on 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 is necessary. The aforesaid two mandatory requirements have to be complied with for a testament to be valid from the point of view of its execution. In the instant case, there are two attestors namely, PW2-Varadan and Dakshinmurthy and the latter had died. The evidence on record has to be as per Section 68 of the Indian Evidence Act, 1872 which deals with proof of documents which mandate attestation. In order to Page 21 of 23 prove the execution of the document such as a testament, at least one of the attesting witnesses who had attested the same must be called to give evidence for the purpose of proof of its execution. Since one of the attestors, namely, Dakshinmurthy had died, PW2, Varadan had given his evidence as one of the attestors of the will. However, the deposition of PW2 is such that it is fatal to the case of the plaintiffs.
27. Hon'ble the Supreme Court in Raj Kumari Vs. Surinder Pal Sharma3 has held at paragraph 13 & 14 as under:-
"13. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator.
14. The need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act has been elucidated and explained in several decisions. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others.2 dilating on the statutory and mandatory requisites for validating the execution of the Will, this Court had highlighted the dissimilarities between the Will which is a testamentary instrument vis-à-vis other documents of conveyancing, by emphasizing that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature 3 2019 SCC Online SC 1747 Page 22 of 23 and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect."
28. The first Appellate Court has examined the Will in the light of the material placed on record and has held that there were suspicious circumstances available on record which clouds have not been cleared, therefore, the learned First Appellate Court has reversed the finding recorded by the learned trial court with regard to prove of the Will. The learned trial court has rightly appreciated the evidence, material on record and considering the law on the question of Will has rightly recorded a finding that the Will has not been proved as there were suspicious circumstances which have not been cleared. Therefore, the substantial question of law framed by this court that whether the learned First Appellate Court was justified in reversing the well reasoned finding recorded by the trial court with regard to execution of the Will is answered in negative against the appellant in Second Appeal No. 153 of 2021 and against the appellant in Second Appeal No. 250 of 2020. The finding of the First Appellate Court is neither perverse nor contrary to the record, which warrants interference by this Court.
29. Accordingly, Second Appeal No. 153 of 2021 filed by the appellant/defendant No.3 and Second Appeal No. 250 of 2020 filed by the appellant/plaintiff are liable to be and are hereby dismissed. The judgment and decree passed by the First Appellate Court that the plaintiff and defendants are entitled to get 1/10 share of the suit property is affirmed. Interim order passed by this court shall stand vacated.
Page 23 of 2330. No order as to costs.
31. A decree be drawn-up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Raju