Chattisgarh High Court
Panchu And Ors vs Bisahin Bai And Ors on 22 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No.501 of 2013
1. Panchu S/o Late Sudama Aged About 60 Years, Caste Halba R/o
Umarvahi, Post- Godalvahi, Tah. Churiya, P.S. Dongergaon, Distt.
Rajnandgaon C.G., Chhattisgarh
2. Purshottam S/o Late Sudama Aged About 57 Years, Caste Halba R/o
Umarvahi, Post- Godalvahi, Tah. Churiya, P.S. Dongergaon, Distt.
Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh
3. Santu S/o Late Sudama Aged About 60 Years, Caste-Halba R/o
Umarvahi, Post- Godalvahi, Tah. Churiya, P.S. Dongergaon, Distt.
Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh
---- Appellant/Defendants No.1 to 3
Versus
1. Bisahin Bai W/o Mansay Aged About 55 Years Caste-Halba R/o
Patora, Post- Mahrum, Tah. Dongergaon, Tah. Rajnandgaon, Distt.
Rajnandgaon C.G., Chhattisgarh (Plaintiff)
2. Indrani Bai W/o Phool Singh Caste-Halba Aged About 50 Years R/o
Turgarh, Post- Dautola, P.S. Dongergaon, Tah. Rajnandgaon, Distt.
Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh (Plaintiff)
3. Jayanti Bai W/o Mansay Caste-Halba Aged About 40 Years R/o
Kaudikasa, Tah. Chowki, Distt. Rajnandgaon C.G., District :
Rajnandgaon, Chhattisgarh (Plaintiff)
4. President Education Samiti Village- Umarwahi, Thru- Chamaru Ram,
S/o Amru, R/o Umarvahi, P.S. Dongergaon, Tah. Dongergaon, Distt.
Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh (Plaintiff)
5. State Of Chhattisgarh Through- Collector, Rajnandgaon C.G., District :
Rajnandgaon, Chhattisgarh (Defendant No.4)
---- Respondents
(Cause title is taken from CIS)
Present:-
Shri Rakesh Kumar Thakur, counsel for the appellants.
Shri Sanjeev Kumar Agrawal, Panel Lawyer for the State/respondent No.5.
Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal
Order On Board
22/02/2023
Heard on admission.
1. This appeal has been preferred by the defendants under Section 100
of the Code of Civil Procedure, 1908 questioning the legality and propriety of
the judgment and decree dated 11.09.2013 passed by the 2 nd Additional
District Judge, Rajnandgaon in Civil Appeal No.27-A/2012, whereby the
appellate Court, while affirming the judgment and decree dated 20.09.2011
passed by the 1st Civil Judge Class-II, Rajnandgaon in Civil Suit
No.106-A/2009, has dismissed the appeal. The parties shall be referred
hereinafter as per their description before the Courts below.
2. Briefly stated the facts of the case are that the plaintiffs instituted a suit
claiming declaration of title and also for the declaration to the effect that the
registered deed of will dated 13.05.1998 be declared as null and void.
According to the plaintiffs, the property in question bearing Khasra No.356/1,
444/1, 504/2 admeasuring 2.10 Acre, 0.40 Acre and 1.65 Acre respectively,
situated at Village Umarwahi, Tahsil and District Rajnandgaon were originally
held by their grandfather namely Bisauha and after his death, the property in
question was inherited by his son Bhujbal and daughter Kalabai, who was
the mother of the plaintiffs. Further contention of the plaintiffs is that Bhujbal
had died issueless, while his wife Amrit Bai was missing for the last 18 years
and therefore, an application was moved by their mother-Kalabai before the
Additional Tahsildar, Rajnandgaon for obtaining the revenue papers mutated
in her name and, in the said proceeding, an objection was raised by the
defendant No.4-President, Education Society of said Village Umarwahi by
saying that the property in question bearing Khasra No.356/1 admeasuring
2.10 Acre was given by said Amrit Bai by executing a declaration form on
26.01.1988 and that by considering the said objection, the name of said
defendant was directed to be recorded vide order dated 12.12.1997, while
rest of the property in the name of said Kalabai. It is pleaded further that their
mother-Kalabai has questioned the said order before the Sub Divisional
Officer, Rajnandgaon, who in turn, while reversing the said order, has
remanded the matter for its fresh trial vide its order dated 23.10.1998 and
being aggrieved with the said order, the defendant No.4 has preferred an
appeal before the Board of Revenue, Raipur, where, it has been observed
vide its order dated 10.03.2004 that Kalabai alone was entitled to get the
revenue papers recorded in her name.
3. Further contention of the plaintiffs is that the defendant No.4 had
instituted a suit, being Civil Suit No.46-A/2004, before the 3 rd Civil Judge,
Class II Rajnandgaon for declaration of title and injunction on the basis of the
alleged declaration form dated 26.01.1988 against the plaintiffs while
impleading them as defendants therein. It is pleaded further that in the said
suit, an application was made by the defendant No.4 on 25.11.2005 under
Order 1 Rule 10 of the CPC for impleadment of the defendants No.1 to 3 as
necessary parties as they are claiming their interest over the property in
question, including the land bearing Khasra No.356/1 admeasuring 2.10 Acre
on the basis of the alleged will dated 13.05.1998 and, then only, the plaintiffs
have came to know that the said will was obtained by their father namely
Sudama from Kalabai and had succeeded to get the revenue papers
recorded in his name and while taking undue advantage of it, has obtained
the possession of the suit land. The plaintiffs have, therefore, been
constrained to institute a suit in the instant nature.
4. While contesting the aforesaid claim, it was pleaded by the defendants
No.1 to 3 in their written statement that the property in question has already
been bequeathed by said Kalabai in favour of their father namely Sudama by
executing a registered deed of will dated 13.05.1998 and based upon which,
the revenue papers were, accordingly, recorded in their name and they are,
therefore, in possession lawfully over the property in question. The plaintiffs'
claim is, therefore, deserves to be dismissed. The defendant No.4 has
submitted its written statement while contesting the claim on the basis of the
alleged declaration form dated 26.01.1988 said to have been executed by
said Amrit Bai with regard to the property in question bearing Khasra
No.356/1 admeasuring 2.10 Acre.
5. From perusal of the aforesaid pleadings of the parties, it, thus,
appears that the plaintiffs are claiming their interest by way of inheritance
with regard to the property in question, which was originally held by their
predecessor in interest namely Bisauha and since the defendants No.1 to 3
are claiming their interest on the basis of the alleged registered deed of will
dated 13.05.1998 (Ex.P-1), purported to have been executed by plaintiffs'
mother namely Kalabai in favour of their predecessor in interest namely
Sudama, therefore, they have been compelled to institute the suit in the
instant nature for declaration to the effect that they are not bound by the
alleged deed of will as the same was obtained fraudulently by said Sudama.
The defendants No.1 to 3, who are his children, are, thus, trying to set up
their interest over the property in question as described in Plaint Schedule-A
by virtue of the alleged registered deed of will dated 13.05.1998 (Ex.P-1).
The burden is, therefore, upon them to establish the execution, attestation
and validity of it by way of examining at least one of its attesting witnesses as
required under Section 68 of the Indian Evidence Act, 1872. The said
provision is relevant for the purpose, which reads as below :-
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.]
6. The aforesaid provision speaks of as to how a document required by
law to be attested can be proved. According to the said provision, a
document required by law to be attested 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. On a combined reading of Section
63 of the Indian Succession Act, 1925 with Section 68 of the Indian Evidence
Act, 1872, it appears that a person propounding the will has to prove that the
will was duly and validly executed and for which at least one attesting
witness has to be called for proving its due execution as envisaged under
Section 68 of the Indian Evidence Act, 1872.
7. In the instant matter, none of the attesting witnesses was admittedly
examined by its propounder, i.e. defendants No.1 to 3 in order to prove its
due execution. In absence thereof, the execution of the alleged will cannot be
upheld. Since the alleged registered deed of will (Ex.P-1) has not been
proved as required to be proved mandatorily under Section 68 of the Indian
Evidence Act, 1872, as observed hereinabove, therefore, it cannot be said
that they have acquired any interest whatsoever over the property in question
based upon the alleged will dated 13.05.1998 (Ex.P-1).
8. Consequently, the Courts below have rightly disbelieved the same
while decreeing the plaintiffs' claim and, I, therefore, do not find any question
of law, much less the substantial questions of law which arise for
determination in this appeal. The appeal being devoid of merit, is accordingly
dismissed at the admission stage itself. No order as to costs.
SD/-
(Sanjay S. Agrawal)
Judge
Tumane
