Chattisgarh High Court
Jagdish @ Jagdish Prasad @ Jagdish Kumar ... vs Ashutosh And Anr on 1 July, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 13
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 348 of 2012
Reserved on : 13.04.2022
Delivered on : 01.07.2022
1. Jagdish @ Jagdish Prasad @ Jagdish Kumar, S/o Thir Ram,
Aged About 50 Years.
2. Kameshwar Prasad, S/o Thir Ram, Aged About 43 Years.
Both are Caste- Kalar, Occupation- Agriculture, R/o Village-
Jogra, Post Office- Masaniyakala, Tahsil- Sakti, District- Janjgir-
Champa (C.G.)
---- Appellants
Versus
1. Ashutosh, S/o Medini Prasad, Aged About 26 Years, Caste-
Kalar, Occupation- Agriculture, R/o Village- Jogra, Post Office-
Masaniyakala, Tahsil- Sakti, District- Janjgir-Champa (C.G.)
2. State of Chhattisgarh, through- Collector, Janjgir, District- Janjgir-
Champa (C.G.)
---- Respondents
For Appellants : Mr. H.B. Agrawal, Sr. Advocate with Ms. Preeti Yadav, Advocate.
For State/Respondent No. 2 : Ms. Ishwari Ghritlahre, Panel Lawyer.
Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT
1. Heard on admission.
2. This second appeal has been filed by the appellants/plaintiffs under Section 100 of the C.P.C. against judgment and decree dated 19.06.2012 passed by Additional District Judge, Sakti, District- Janjgir-Champa (C.G.) in Civil Appeal No. 51A/2011 (Jagdish @ Jagdish Prasad @ Jagdish Kumar & another Vs. Ashutosh & another), affirming the judgment and decree dated 28.07.2011 passed by Civil Judge Class-II, Sakti, District- Janjgir-Champa (C.G.) in Civil Suit No. 2A/2010.
3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 2A/2010 which was filed Page 2 of 13 before the trial Court for declaration of title, possession, demolition of filling work, grant of permanent injunction and compensation.
4. The brief facts, as reflected from the plaint averments, are that the plaintiffs have filed Civil Suit No. 2A/2010 before Civil Judge Class-II, Sakti, District- Janjgir-Champa mainly contending that the land admeasuring total 9 dismil land situated at Village- Jogra, Patwari Halka No. 9, Tahsil-Sakti bearing Khasra No. 134/5 & Khasra No. 135 are agricultural land, which has been received by plaintiffs' mother namely Dhiyabai in partition which in subsequent paragraph will be referred to as the suit property. On 21.09.2007, deceased- Dhiyabai executed a Will of her all movable & immovable properties in favour of plaintiffs, accordingly, the plaintiffs are in possession of the suit property after death of Dhiyabai on 30.09.2007 and they became title holder of the suit property.
5. It has been further contended that the plaintiffs could not demarcate the land as per Will, but they are in possession of the said land. On 11.11.2009, defendant No. 1 has started filling work on the land mentioned in Schedule-A of the plaint. The plaintiffs have raised objection, but defendant No. 1 has not stopped the filling work and he has objected to the title of the plaintiffs, which has necessitated the plaintiffs to file a civil suit before the trial Court for declaration of title, possession, demolition of filling work, grant of permanent injunction and compensation. It has been further contended that defendant No. 1 is real brother of purchaser- Bhuvaneshwar, therefore, if the property is being sold by Bhuvaneshwar, then they have preferential right to purchase the same, as such, the sale-deed dated 25.06.2007 is illegal.
6. Defendant No. 1 has filed his written statement denying the allegations made in the plaint mainly contending that plaintiffs are describing the suit property incorrectly as along with the plaintiffs, Bhuvaneshwar has also share in the property. The Page 3 of 13 plaintiffs are describing the land area 0.08 acres of Khasra No. 134/05 and 0.01 acres, of Khasra No. 135 (total 0.09 acres) wrongly. On 25.06.2007, defendant No. 1 has purchased 0.11 acres from Khasra No. 134/1 and 0.01 acres from Khasra No. 135 through registered sale-deed along with other properties and his name has already been mutated. It is also denied that on 21.09.2007, Dhiyabai executed a Will in favour of the plaintiffs, even if any Will has been executed, which is forged one, the Will in favour of the ancestral property cannot be executed as Bhuvaneshwar has also right over the ancestral property. It has been further contended that the property has wrongly been described in Schedule-A of the plaint as water drainage has been shown the Schedule-A, which has already been closed prior to 3-4 years and in north house of Amardas and go-down of Ramdas and kitchen garden of Fekan are mentioned, which is incorrect and in the south plaintiff's and Bhuvaneshwar's lands are mentioned which clearly clarifies that the property is in joint account and without permission of Bhuvaneshwar, the suit has been filed, which is not maintainable. It has been further contended that the plaintiffs are not entitled to claim any relief unless sale-deed declared null and void and would pray for dismissal of the suit.
7. On pleadings of the parties, the learned trial Court has framed as many as eight issues. The issue No. (1A) & (1B) are relevant, therefore, they are being extracted below:-
"(1A) Whether deceased Dhiyabai has executed a Will on 21.09.2007 with respect to the suit land in favour of the plaintiffs?
(1B) Whether deceased Dhiyabai had right to execute Will?"
8. The plaintiffs to substantiate their case, have examined Jagdish @ Jagdish Prasad (PW-1), Harisingh Sidar (PW-2), Hemant Kumar (PW-3) and exhibited documents namely map of suit property (Ex.P/1), Kishtabandi Khatauni of land recorded in the name of Dhiyabai for the year 2009 (Ex.P/2), Khasra Panchashala for the year 2009-10 (Ex.P/3), Kishtabandi Page 4 of 13 Khatauni (Ex.P/4), Kishtabandi Khatauni of Kameshwar Prasad for the year 2009 (Ex.P/5) & Will dated 21.09.2007 executed by Dhiyabai (Ex.P/6).
9. Jagdish @ Jagdish Prasad (PW-1) has admitted that his brother and he himself have sold the property. He was not aware about the execution of the sale-deed before filing of the suit. He came to know about the fact that his brother has sold the property to defendant No. 1- Ashutosh. He has also stated that he has not raised any objection at the time of execution of the sale-deed and even it is not within his knowledge. He has admitted that he has not filed any suit against his brother with regard to the suit property. He has also stated that when Bhuvaneshwar sold the property to Ashutosh on that day, he has also sold the property to Chaitram. He is aware of the property sold to Chaitram.
10. Harisingh (PW-2) has stated in examination-in-chief that Dhiyabai has put her thumb impression in the stamp paper at her resident situated at Village- Jogra, Tahsil-Sakti, thereafter, he himself has put his signature on the stamp paper and thereafter, Hemant Kumar and Village Kotwar namely Gulabram have put their signature on the stamp paper. He is subscriber of the Will and the Will has been written as per instruction of Dhiyabai. He has stated that Hemant Kumar has put his signature before him. He has also stated that in first page of the Will, Gulabram has put his signature. Harisingh was cross-examined by the defendants wherein he has stated that on 14.09.2007 Dhiyabai told him to bring the stamp paper and on that day, he gave the stamp paper purchased by him to Dhiyabai. He has also stated that he has purchased the stamp paper on 14.09.2007 and no stamp paper has been purchased on 21.09.2007. He has also stated that Dhiyabai called him through telephone and he reached there at 9.30 a.m. and returned back at 12.30. p.m. He has denied that the Will (Ex.P/6) has been written on the instructions of Jagdish. He has denied that Dhiyabai expired prior to execution of the Will. He has also stated that at the time Page 5 of 13 of documentation, he has not seen the revenue record.
11. Hemant Kumar (PW-3) who was attesting witness of the Will has stated that the Will in favour of the plaintiff was written by Harisingh Sidar and after reading the same, Dhiyabai put her thumb impression before Gulabram. Dhiyabai expired on 30.09.2007 and since then the plaintiffs are in possession of the suit property. This witness was cross-examined by the defendant wherein he has stated that Harisingh Sidar is well known to him, but he is not aware about friendship between Jagdish & Harisingh. He has also stated that at the time of documentation, Bhuvaneshwar was not present there. He has also stated that Dhiyabai has called him and when he reached, Gulabram was called. The documentation was done at 3.00 p.m. and at that time, Harisingh and Jagdish were also sitting there. He has also stated that after execution of Will (Ex.P/6), he has put his signature, thereafter, Kotwar has put his signature and at last, subscriber of the Will namely Harisingh has put his signature. He has also stated that he was not aware before execution of Will (Ex. P/6) that the land was already sold or not.
12. Defendant No. 1- Ashutosh examined as DW-1 and exhibited documents namely sale-deed dated 25.06.2007 (Ex.D/1), mutation register for the year 2006-07 (Ex.D/2), map (Ex.D/3), Khasra Panchshala dated 14.11.2009 (Ex.D/4), B-1 Kishtabandi Khatauni for the year 2009 (Ex.D/5), copy of sale-deed (Ex.D/6), photograph of the suit property (Ex.D/7), photocopy of the sale- deed 25.06.2007 (Ex. D/1C).
13. Ashutosh (DW-1) in his examination-in-chief has reiterated the stand which he has already taken in his written statement. He has stated that the revenue record attached with the sale-deed 11 dismil has not separately recorded in the name of the Bhuvaneshwar and name of Jagdish, Rameshwar, Dhiyabai & Kameshwar have been recorded. When the witness was put specific question that you have not purchased the property of Jagdish & Kameshwar then why you have given the sale Page 6 of 13 consideration to them then, the witness has stated that since the land belongs to all the three persons, therefore, he has given his sale consideration.
14. Learned trial Court while deciding issue No. 1A, 1B & 2 has recorded its finding that from perusal for documents Ex. P/6, it is not clear that which property was Will in the name of Jagdish and Kameshwar as there is no specific description of the property. It has also been recorded that no revenue record has been filed by the plaintiffs that which property is received by Dhiyabai in the partition. This clearly creates doubt over the execution of the Will. Learned trial Court has further recorded its finding that the sale-deed has been executed on 25.06.2007 and the Will has been executed on 21.09.2007 and at that time, Dhiyabai was aware that the sale-deed has already been executed by Bhuvaneshwar as he has already sold the property of Village- Jogra, therefore, she is depriving of him from the property through this Will. Even from bare perusal of the Will, it is quite vivid that the Will does not specify, which property she intends to give in the Will to the plaintiffs. As there is no description in the property, which itself creates suspicious circumstances and the plaintiffs have not cleared the clouds. Learned trial Court has also recorded that Bhuvaneshwar, who has sold the property has not arrayed as party to the case, which creates doubt, therefore, issue No. 1 has been decided by recording finding that the suit property has not been described in the Will in favour of the plaintiffs.
15. Learned trial Court while deciding issue No. 3- whether defendant No. 1 has purchased the property to Bhuvaneshwar on 25.06.2007 through registered sale-deed has held in favour of the defendants. Learned trial Court has taken a note on sale- deed (Ex.D/1) and also considered that the sale-deed has not been challenged by the plaintiffs and the person who has sold the property has not been arrayed as party to the case, therefore, issue No. 3 has also been decided in favour of the Page 7 of 13 defendants. Learned trial Court after appreciating the material placed on record, has dismissed the suit filed by the plaintiffs. Being aggrieved with the judgment and decree passed by the trial Court, the plaintiffs have preferred first appeal before the First Appellate Court i.e. Additional District Judge, Sakti, District- Janjgir-Champa which has also been dismissed vide judgment and decree dated 19.06.2012 by recording finding that at the time of execution of sale-deed (Ex.D/1), purchaser- Bhuvaneshwar, seller i.e. plaintiffs' mother have not partitioned the property, but the plaintiffs have not filed any suit for declaration of the sale-deed to be null and void and even they have taken a note that the preferential right of the property, but they have not produced any evidence, therefore, it cannot be said that the plaintiffs are intended to purchase the property of Bhuvaneshwar on preferential right and even Bhuvaneshwar who has sold the property has not been arrayed as party to the case. Considering all the aspects of the matter, the First Appellate Court has dismissed the appeal filed by the plaintiffs and against that, the plaintiffs have preferred second appeal before this Court.
16. Learned Senior Advocate for the plaintiffs/appellants would submit that the trial Court as well as the First Appellate Court both have erred in dismissing the suit as well as appeal when the partition (Ex.D/2) dated 06.09.2007 is already on record which, clearly shows that who was owner of the particular khasra number, therefore, finding is perverse and the same is liable to be set aside. He would further submit that respondent No. 1 could get any title or right over the property purchased, because at the relevant time, the vendor Bhuvaneshwar was not the owner of the that property sold by him, therefore, his right to sue against Bhuvaneshwar for recovery of money, only should have been granted instead of holding it to be joint property and declaring suit for partition. He would further submit that the suit property does not belong to respondent No. 1, therefore, he has Page 8 of 13 no right and authority to disturb the possession, therefore, suit filed as it is liable to be decreed with cost throughout. He would further submit that the judgment and decree of Courts below may kindly be set aside and would pray that the appeal may be admitted for hearing by framing the substantial question of law.
17. I have heard learned Senior Advocate for the appellants/plaintiffs and perused the records of the courts below with utmost satisfaction.
18. From the above stated factual matrix the question has to be determined by this Court is whether the Will has been proved as per the provisions of Section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act?
19. For better understanding this issue, it is expedient for this Court to extract the provisions of Section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act which are as under:-
"Section 68 of the Evidence Act 1872- 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 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. 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 acknowldgment 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 witnesses be present at the same time, and no particular from of attestation shall be necessary."Page 9 of 13
20. Hon'ble the Supreme Court in Shivkumar Vs. Sharanabasappa reported in 2021 SCC 277 has at paragraph 11 held as under:-
11. As noticed, the basic point for determination in this case is as to whether the High Court was justified in taking a view contrary than that of the Trial Court and in holding that the Will propounded by the plaintiffs is not the genuine Will of the deceased Sangappa. Determination of this point, obviously, revolves around the legal principles applicable to the making of a testamentary document like Will, its proof, and its acceptance by the Court. 11.1. The Will being a rather solemn document that comes into operation after the death of the testator, special provisions are made in the statutes for making of a Will and for its proof in a Court of law. Section 59 the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will.
A Will or any portion of a Will, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 the Succession Act; and further, Section 62 the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will.
Chapter III of Part IV of the Succession Act contains the provisions for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV)."
21. From bare perusal of the evidence, material placed on record, it is quite vivid that the sale-deed was executed on 25.06.2007 and the Will is said to have been executed on 21.09.2007 i.e. after execution of sale-deed and from the records, it is evident that Dhiyabai expired on 30.09.2007 which is immediately within 10 days after execution of Will, which creates doubt over genuineness of the Will. There are suspicious circumstances and clouds have been created, which have not been cleared by the plaintiffs by recording cogent evidence. Hemant Kumar (PW-
3), who was relative of plaintiff and defendant No. 1 as well as attesting witness of the Will has stated in his examination-in- chief that Dhiyabai after reading and hearing the contents of the Will has put her thumb impression and Harisingh who was Page 10 of 13 subscriber of the Will has stated that Dhiyabai is not able to read and write. There are contradictions between evidence of subscriber and attesting witness of the Will, which creates suspicious circumstances with regard to the execution of Will and the clouds have not been cleared by the plaintiffs, therefore, it cannot be said that the Will has been proved.
22. Hon'ble the Supreme Court in Murthy Vs. C. Saradambal1 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 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 1 Civil Appeal No. 4270 of 2010 (Decided on 10.12.2021) Page 11 of 13 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 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.
23. Learned trial Court while dismissing the suit has recorded finding that there is no challenge to the sale-deed and it has also been recorded that the alleged Will has been executed on 21.09.2007 whereas the property has been sold by Bhuvaneshwar to defendant No. 1 on 25.06.2007. The plaintiffs in this case have Page 12 of 13 not taken any ground whether Bhuvaneshwar has right to sell the property or not, but have claimed the right over the suit property on the basis of Will, which was not in existence at the time of execution of the alleged Will. Even plaintiffs' witness namely Jagdish has admitted that Bhuvaneshwar has sold one of the property to Chaitram on 25.06.2007 and this fact was already brought in his notice, therefore, it cannot be held that the plaintiffs were not aware about the sale of the property by Bhuvaneshwar on 25.06.2007.
24. Learned trial Court after considering all the grounds, material placed on record, has dismissed the suit filed by the plaintiffs which was affirmed by the learned First Appellate Court.
25. Upon perusal of entire evidence, there is any substantial question of law requiring to be formulated for hearing of this second appeal. There is concurrent finding of facts with regard to the sale-deed which has been executed on 25.06.2007 and the alleged Will has been executed on 21.09.2007 and there is no challenge to the sale-seed. As such, it cannot be held that the property was in the name of Dhiyabai, therefore, Dhiyabai cannot execute any Will for property, which is not belonged to her. Even there were suspicious circumstances over the execution of the Will, which has not been cleared by the plaintiffs. This is purely finding of fact. As such, no question of law requires to be determined by this Court. Hon'ble the Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others 2, has held at paragraph 28 as under:-
"28. Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out 2 (2020) 4 SCC 659 Page 13 of 13 that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
26. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.
27. In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.
28. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Arun