Balram vs Bugali Bai
2022 Latest Caselaw 3166 Chatt

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                                                                   AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR

                          SA No. 12 of 2018

                      Reserved on : 09.03.2022

                      Delivered on : 02.05.2022

      Balram, S/o Bodhram, Aged About 55 Years, Caste-
      Suryavanshi, R/o Village- Khokhara, District- Janjgir-Champa
      (C.G.)
                                                          ---- Appellant
                                  Versus

1.    Bugali Bai, D/o Allu, Aged About 55 Years, Caste- Kahara, R/o
      Village- Navagarh, P.S. & Tahsil- Navagarh, District- Janjgir-
      Champa (C.G.)
2.    Bhupendra Singh, S/o Tikam Singh, Aged About 35 Years,
      Caste- Dariya (Kshatri), R/o Janjgir, District- Janjgir-Champa
      (C.G.)
3.    Avinash Sharma, S/o Vishnu Prasad Sharma, Aged About 25
      Years, R/o Naila, P.S. & Tahsil- Janjgir, District- Janjgir-Champa
      (C.G.)
4.    State of Chhattisgarh, Through: The Collector, Janjgir, District-
      Janjgir-Champa (C.G.)
                                                     ---- Respondents

For Appellant : Mr. Shobhit Koshta, Advocate. For State/Respondent No. 4 : Mr. Tarkeshwar Nande, P.L.

Hon'ble Shri Justice Narendra Kumar Vyas

C.A.V. JUDGMENT

1. Heard on admission.

2. The second appeal has been filed by the appellant/plaintiff under Section 100 of the C.P.C. against judgment and decree dated 07.11.2017 (Annexure A/1) passed by District Judge, Janjgir- Champa (C.G.) in Civil Appeal No. 12A/2017 (Balram Vs. Bugali Bai & others) affirming the judgment and decree dated 27.01.2017 passed by Second Civil Judge Class-I, Janjgir, District- Janjgir-Champa (C.G.) in Civil Suit No. 45A/2008

(Annexure A/2).

3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 45A/2008 which was filed for declaration of title of the suit property.

4. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed a civil suit for declaration of title of suit property bearing Khasra No. 3206 area admeasuring 3.13 acre situated at Village- Khokhra, Patwari Halka No. 45, Revenue Circle & Tahsil- Janjgir, District- Janjgir-Champa (C.G.) mainly contending that the suit property was recorded in the name of Sita Ram, S/o Allu Kahara & defendant No. 1-Bugali Bai. Sita Ram has taken renunciation, defendant No. 1 got married and living at Village- Navagarh with her husband. It has been contended that Sita Ram after traveling to various religious places came back to Village- Khokhra in the year 2003-04 at that time, he was aged about 70 years. His family members, members of the community and society, relatives have shown inability to look after him, therefore, the plaintiff started taking care of Sita Ram and also brought him to his house for care. It has been further contended that on 07.01.2004, Sita Ram convened a meeting of prominent persons including Sarpanch of Village- Khokhra at Mankadai Temple, in which, defendant No. 1-Bugali Bai was also present. In that meeting, Sita Ram stated that he is fully satisfied with the care taken by the plaintiff, therefore, he intended to give his property and also intended to execute a Will in favour of the plaintiff.

5. It has been further contended that defendant No. 1- Bugali Bai giving due respect to the wisdom of his brother- Sitaram has given her consent on blank paper after affixing revenue ticket in presence of two witnesses including Sita Ram. With the consent and opinion of defendant No. 1, Sita Ram has executed Will in favour of the plaintiff. After getting consent from defendant No. 1, in presence of Nandlal & Bharat Lal, Sita Ram executed Will on 27.01.2004 in the office of Deputy Registrar, Janjgir, wherein it

has been stated that this Will is first and last Will and the same will be given effect after his death, plaintiff will become title holder of the suit property and this Will is being handed over to the plaintiff. It has been further stated that Sita Ram with consultation to the plaintiff again went on religious tour to Chitrakut where he died on 10.10.2004, the plaintiff performed the last rituals of Sita Ram at Chitrakut.

6. It has been further contended that on the basis of will, after death of Sita Ram, the plaintiff mutated the suit property in his name, but defendant No. 1 having malafide intention has preferred an appeal before the court of Sub-Divisional Officer, Janjgir, which has been partly allowed by remanding the matter to the Tahsildar for deciding the case on merit. During pendency of the proceeding before Tahsildar, defendant No. 1- Bugali Bai sold 1.56 acres land to Bhupendra Singh, S/o Tikam Singh through registered sale-deed dated 15.03.2005 and remaining 1.56 acres land has been sold to defendant No. 3 by registered sale- deed. The Tahsildar passed an order dated 14.02.2008 that since the property has already been sold, therefore, no property is available as per the Will, as such, the said mutation is not possible, accordingly rejected the said application. The plaintiff has preferred an appeal, which has affirmed the order passed by the Tahsildar. This has necessitated the plaintiff to file the suit for declaration that the sale-deed done by defendants No. 1 to 3 is null and void and he may kindly be declared title holder of the suit property.

7. Defendant No. 2-Bhupendra Singh has filed written statement resisting the averment made in the plaintiff mainly contending that family members, relatives and citizens of society were shown their inability to look after Sita Ram. It has been denied that villagers and the plaintiff have taken care of Sita Ram. It has also denied that defendant No. 1 has given any consent for execution of relinquishment-deed in favour of Sita Ram, which is forged and fabricated document, which does not confer any right

to the plaintiff. It has also been denied that with the consent of defendant No. 1, Sita Ram has executed Will on 27.01.2004 in presence of witnesses namely Nandlal and Bharat Lal. It has also been denied that any Will has been executed in favour of the plaintiff. It has been stated that the plaintiff- Sita Ram has no right to execute any Will with regard to the suit property as it is joint property recorded in the name of Sita Ram and defendant No. 1. It has also been contended that defendant No. 1 has sold the property i.e. 1.56 acres of land to defendant No. 2 through registered sale-deed on 18.02.2005 for sale consideration of Rs. 3,40,200/-. On the basis of the sale-deed, defendant No. 2 has already mutated his name. It has also been stated that defendant No. 1 has filed an application before Tahsildar contending that the executed Will is forged and fabricated. On the basis of the application, name of defendant No. 1 has been recorded by the Tahsildar in revenue record, thereafter, defendant No. 1 got executed sale-deed in favour of defendant No. 2 and would pray for dismissal of the suit.

8. Defendant No. 3 has filed a written statement denying the allegation made in the plaint mainly contending that the order passed by the revenue court is legal and justified. Additional pleading was also made by defendant No. 3 contending that Sita Ram was issue-less, old aged person and was unable to protect his interest, taking advantage of the old age of Sita Ram, under undue influence of the plaintiff, the forged and fabricated Will has been prepared, therefore, the plaintiff does not confer any right in his favour. It has been further contended that Sita Ram was not traceable for the last seven years, whether he is surviving or not. Defendant No. 1 has right to execute the sale-deed. Hence, he prayed for dismissal of the suit.

9. Learned trial Court after pleading of the parties framed as many as eight issues. Issue No. 2 & 3 are necessary for adjudicating the present case, which are extracted below:-

Issue No. 2 - Whether Sita Ram has transferred the suit

property in favour of the plaintiff through registered Will?

Issue No. 3 - Whether the will has been executed with consent of defendant No. 1?

10. The plaintiff to substantiate his case has examined himself as PW-1, Nandlal (PW-2), Bajrang (PW-3), Radheshyam (PW-4), Ramsharan Suryavanshi (PW-5), Totaram (PW-6) & Dhaniram (PW-7) and exhibited documents namely Will (Ex. P/1), death certificate (Ex. P/2) & consent letter (Ex. P/3).

11. Learned trial Court has fixed the case on 27.02.2015 for cross-

examination of Rohit Kumar, Advocate- Shri Banjare, Bharatlal & Dhaniram, but they have not appeared, therefore, the learned trial Court has fixed the case on 13.03.2015 for cross- examination of these witnesses. On 13.03.2015, these witnesses did not appear for cross-examination, therefore, the learned trial Court has closed right of the plaintiff to examine these witnesses, which was never assailed before any forum.

12. Nandlal (PW-1) was examined before the trial Court and in the cross-examination, he has admitted that he has put his signature without reading the Will, therefore, he cannot say that what was written in the Will. He has further admitted before executing the Will, it was informed to him that temple of Lord Laxminarayan Will be constructed and statue of Mahatma Gandhi Will also be installed. He has also stated that Balram has taken Sita Ram to the office of Deputy Registrar for registration of Will.

13. Barjang (PW-3) has examined before the trial Court and has reiterated the stand taken by the plaintiff. In the cross- examination, he has admitted that at time of preparation of relinquishment deed, no other person was present there, but Balram was present there. He has also stated that Sita Ram expired in Chitrakut, but he has not gone to Chitrakut for attending the last rituals of Sita Ram. Since he was not present there, he is not aware that who has done last rituals of Sita Ram.

14. Radheshyam (PW-4), Sarpanch also examined before the trial

Court and in cross-examination he has admitted that the Will has been executed in his house and he has put his signature. He has also admitted that neither temple of Lord Laxminarayan has been constructed nor statue of Mahatma Gandhi has been installed. Ramsharan (PW-5) was examined before the trial Court wherein in the cross-examination, he has admitted that Balram belongs to his caste and he is his brother in relation.

15. Totaram (PW-6) who was witness of the relinquishment-deed dated 07.01.2004 has examined before the trial Court and in the cross-examination, he has admitted that with regard to the Will, no meeting was convened in office of Gram Panchayat and Mankadai Temple, but he has stated with regard to the consent that a meeting was organized. He has admitted that he is not aware whether the documentation has been explained to Bugali Bai as he had gone for urination at that time.

16. Defendant No. 2 examined Bhupendra Singh (DW-1), Balram, Bugali Bai, Avinash Sharma and exhibited document order-sheet from 11.07.2007 to 18.03.2008 (D/1), application dated 11.06.2007 (D/2), written statement dated 28.12.2007 (D/3), order dated 05.03.2008 passed by Tahsildar (D/4), sale-deed dated 18.02.2005 (D/5), order dated 23.04.2007 passed by Sub- Divisional Officer (D/6), Kishtabandi Khatouni for the year 2006- 07 (D/7), Khasra Panchshala for the year 2004 to 2008 (D/8), order-sheet from 02.12.2005 to 23.04.2007 passed by Sub- Divisional Officer (D/9) & application for condonation of delay along with memo of appeal dated 02.12.2005 (D/10).

17. Bhupendra Singh (DW-1) has stated that in pursuance of the sale-deed, he is in possession of the suit property and the said will is forged and fabricated. Defendant No. 1 has moved an application for mutation before Tahsildar wherein she has stated that the executed Will is forged and fabricated and on her application, Tahsildar has passed the order. This witness has cross-examined by the plaintiff before the trial Court, wherein he has stated that the sale-deed was registered on 18.02.2005 and

denied that the Will was executed on 27.01.2005.

18. Learned trial Court after appreciating the evidence and material placed on record has dismissed the suit for the reason that Bugali Bai has executed relinquishment-deed which must be registered under the Registration Act, 1908, but no registration has been done, therefore, the document is inadmissible in the evidence. On the basis of that document, the plaintiff cannot claim any right over the property. Learned trial Court has given finding that plaintiff has not brought any document relating to revenue record to demonstrate that he is in possession of the suit property and from evidence brought on record, it is quite vivid that the plaintiff is not in possession of the suit property whereas the plaintiff has filed the suit for declaration of title only, but has not filed any suit for possession of the suit property, therefore, as per Section 34 of the Specific Reliefs Act, the suit is not maintainable. For this reason also, the learned trial Court has also dismissed the suit.

19. Against that, the plaintiff has preferred appeal before the District Judge. Learned First Appellate Court while dismissing the appeal has recorded a finding with regard to issue No. 2 that the burden lies upon the plaintiff that no suspicious circumstance is available on record with regard to the execution of Will and the plaintiff is unable to clear the clouds of suspicious circumstances. Learned trial Court after appreciating the evidence has recorded its finding that witness- Balran is not aware about execution of Will. No evidence has been recorded that the Will has been written by Sita Ram and thereafter he has put signature. It has also been recorded by learned First Appellate Court that since the plaintiff has not proved his case, therefore, it is not required for defendants to rebut the same. Even the plaintiff has himself submitted that he has taken Sita Ram for registration of Will, which clearly demonstrates involvement of the plaintiff, who was beneficiary of Will. This factual matrix of the matter has been considered by the learned

First Appellate Court. Attesting witness Nandlal has not stated anything that executant Sita Ram has put his signature and other witnesses have also put their signatures in the Will, as such, the First Appellate Court has recorded its finding that the Will has not been properly executed. It has also been recorded that in the Will (Ex.P/1), there is no mention about consent given by Bugali Bai and no explanation has been given why Bugali Bai will give her share. Though the Will was executed on 27.01.2004 after 20 days of execution of alleged consent letter dated 07.01.2004, this fact has not been mentioned in the Will.

20. Attesting witness-Nandlal has admitted in his cross-examination that without reading Ex.P/1, he has put his signature in the Will. This suspicious circumstances and clouds have not been cleared, therefore, learned First Appellate Court has recorded its finding that the Will is not genuine document. Learned First Appellate Court has also taken care of the fact that execution of consent letter to third person is not registered, which is compulsory as the property is valued more than Rs. 100/-. The learned First Appellate Court has also considered this aspect of the matter while dismissing the appeal.

21. Learned counsel for the appellant would submit that the finding recorded by the learned trial Court and affirmed by the learned First Appellate Court is illegal as there is no suspicious circumstances available in the Will, therefore, this second appeal deserves to be admitted by this Court by framing substantial question of law.

22. He would refer to the judgment rendered by Hon'ble the Supreme Court in Vishwanath Bapurao Sabale Vs. Shalinibai Nagappa Sabale & others1, wherein it has been held at paragraph 22 as under:-

"22. In Prem Singh and Ors. v. Birbal and Ors. [2006 (5) SCC 353], this court held :

"20. If the plaintiff is in possession of a property, he may file a suit for declaration 1 (2009) 12 SCC 101

that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.

23. Honble the Supreme Court in Savithri & others Vs. Karthyayani Amma & others2, has held at paragraph 19 & 23 as under:-

"19. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14) SCALE 186], this Court held :

"32. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.

33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus

2 (2007) 11 SCC 621

would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v.

Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document."

23. In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v. Rukminibai Vishnu Vekhande and Others [(2003) 8 SCC 537], this Court held:

"8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. [See also S. Sundaresa Pai and Others v. Sumangala T. Pai (Mrs.) and Another - 2002 (1) SCC 630]"."

24. Hon'ble the Supreme Court in Ganesan (Dead) through Legal Representatives Vs. Kalanjiam & others3, has held at paragraph 5 as under:-

"5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. Section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the

3 (2020) 11 SCC 715

alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will."

25. Learned First Appellate Court considering this fact, material brought on record has recorded its finding that the suspicious circumstances with regard to execution of Will, is available on record and clouds have not been cleared. The finding recorded by the learned First Appellate Court with regard to execution of Will that the Will has not been proved and suspicious circumstances exist, is legal, justified and does not warrant any interference by this Court.

26. So far as finding with regard to non-registration of relinquishment deed is concerned, it is well settled that as per Section 17 of the Registration Act, the document which conferred any right, title of immovable property valued more than Rs. 100/- then its registration under the Registration Act, 1908 is compulsory.

27. Hon'ble the Supreme Court has also examined the issue of transfer of right of property, if value of the property is more than Rs. 100/-. Hon'ble the Supreme Court in case of Shyam Narayan Prasad vs Krishna Prasad and Others 4 has held at paragraphs 20 to 22, which are extracted below:-

"20. Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and 4 (2018) 7 SCC 646

deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.

21. In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this Court was considering the admissibility of an unregistered partition deed. It was held thus:

"......Section 17(i)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property......Two propositions must therefore flow:

(1) A partition may be affected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of S.91 of the Evidence Act, 1872."

22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required under Section 91 of the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2."

28. If we examine the facts of the case, it is quite vivid that defendant No. 1- Bugali Bai has given alleged consent, thereafter she has filed application for mutating her name in the

suit property, which was granted in favour of Bugali Bai, as such, it cannot be visualized that why she will file an application for mutation of her name, this is also suspicious circumstances, which was not cleared by the plaintiff by producing cogent evidence. This clearly demonstrates that the Will is suspicious document and the learned Courts below have rightly disbelieved the execution of Will. It is purely a finding of fact, appreciation of material placed on record or evidence, which is neither perverse nor contrary to the record.

29. Considering all the facts of the case, I am of the view that no substantial question of law involved in this appeal as it is a concurrent finding of fact, which is neither perverse nor suffers from non-application of mind, therefore, second appeal is liable to be and is hereby dismissed at the admission stage itself.

30. No order as to costs.

31. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Arun