Chattisgarh High Court

Santosh And Ors vs Bhanumati And Ors on 23 June, 2025

Author: Narendra Kumar Vyas

Bench: Narendra Kumar Vyas

                                                                   Page 1 of 13




                                                            2025:CGHC:26931

                                                                        NAFR

                                               Reserved On : 09.04.2025

                                             Pronounced On : 23.06.2025


       HIGH COURT OF CHHATTISGARH AT BILASPUR


                             SA No. 328 of 2014

1 - Santosh S/o Sukalu Dhakad Aged About 52 Years R/o Bade
Dharaur,   Tah.     Lohandiguda,    Distt.    Bastar    C.G.,     Chhattisgarh


2 - Inder S/o Bukalu Dhakad Aged About 56 Years R/o Bade Dharaur,
Tah. Lohandiguda, Distt. Bastar C.G., District : Bastar(Jagdalpur),
Chhattisgarh


3 - Veerbhadra S/o Budhram Dhakad Aged About 52 Years R/o Bade
Dharaur,     Tah.   Lohandiguda,     Distt.    Bastar     C.G.,     District   :
Bastar(Jagdalpur), Chhattisgarh
                                                                ... Appellants
                                   versus

1 - Bhanumati W/o Ram Ji Aged About 68 Years R/o Katkona, Tah.
Ambikapur,          Distt.       Surguja          C.G.,           Chhattisgarh


2 - Satyendra Kumar S/o Shivlal Nai Aged About 48 Years R/o Bade
Dharaur,     Tah.   Lohandiguda,     Distt.    Bastar     C.G.,     District   :
Bastar(Jagdalpur), Chhattisgarh


3 - Premlal Patel S/o Late Ramdas Patel Aged About 52 Years R/o
Bade Dharaur, Tah. Lohandiguda, Distt. Bastar C.G., District :
                                                                Page 2 of 13

Bastar(Jagdalpur), Chhattisgarh


4 - Smt. Usha Singh W/o Late Balveer Singh Aged About 54 Years R/o
Bade Dharaur, Tah. Lohandiguda, Distt. Bastar C.G., District :
Bastar(Jagdalpur), Chhattisgarh


5 - State Of Chhattisgarh W/o Thru- The Collector, Bastar, Jagdalpur
C.G., District : Bastar(Jagdalpur), Chhattisgarh
                                                         ---- Respondents

For Appellants       :      Mr. B.P. Sharma, Advocate.
For State            :      Mr. Kishan Lal Sahu, Dy. Govt. Advocate



              Hon'ble Shri Justice Narendra Kumar Vyas
                             C.A.V. JUDGMENT

1. This appeal has been preferred by the appellants/plaintiffs under

Section

100 of the Code of Civil Procedure, 1908 (hereinafter referred to

as the 'CPC') questioning the legality and propriety of the

judgment and decree dated 11.08.2014 passed by the learned

2nd Additional District Judge, Bastar at Jagdalpur (C.G.) in Civil

Appeal No.2-A/2014, whereby the learned first appellate Court

has dismissed the appeal filed by the plaintiffs and affirmed the

judgment and decree dated 20.01.2014 passed by learned First

Civil Judge, Class-I, Jagdalpur (C.G.) in Civil Suit No. 114-A/13.

2. The parties to this appeal shall be referred to hereinafter as per

their description in the trial Court.

3. Briefly stated the facts of the case are that

A) The plaintiffs/appellants filed a civil suit for declaration and

injunction contending that one Mundru Dhakad was the elder

brother of the plaintiffs' father and father of the respondent No 1,

he was having certain properties i.e. Khasra No. 668 area 0.45

Ha. at village Badedharaur and Khasra No. 88 Area 2.44 Ha.

Beliyapal, District Jagdalpur (hereinafter termed as 'suit land').

He died on 27.10.1996 and the plaintiffs were in possession of

the said properties even before the said testator Mundru

Dhakad died. It is also the case of the plaintiffs that Mundru

Dhakad was not having cordial relations with his daughter as

she has married to one Ramji against the will of the testator and

went away to a faraway place of District Sarguja. However, the

said Mundru Dhakad has taken due care, made arrangements

for his properties and written a will although on a plain paper on

02.09.1996 in presence of various persons and given 1/4th

share each to each of three plaintiffs and 1/4th share to his own

daughter/ defendant No 1/respondent no 1. The defendant No. 1

after death of her father got entered her name exclusively in

place of her father without knowledge of the plaintiffs and

transferred the properties in favour of other defendants and on

coming to know the plaintiffs have filed a suit for declaration of

their shares i.e. ¼th share each and also declaration of all the

transfers made by the defendant No. 1 in favor of other

defendants by way of sale deeds void to the extent of the

plaintiffs' share and also for permanent injunction for protection

of their possessory rights etc.

B) After service of summons the defendants appeared before the

trial Court and filed their written statement and denied the case

of the plaintiffs.

C) The defendant No. 1 has filed written statement denying the

allegation that she was married against the will of her father.

She has also denied the execution of the will and the will was

forged and fabricated, as such, it is not binding upon her. She

has also stated that after death of her father on 27.10.1966, the

plaintiffs have not initiated any proceeding up to 15.01.2007

which creates doubt and on 26.12.2002 she has already

transferred the property through registered sale deed. She has

also denied that the plaintiffs were in possession of the suit

property as during the life time Mundru was in possession of the

suit property and upto execution of sale deed, the suit property

was in possession of the defendant No. 1.

D) The plaintiffs to substantiate their case have examined P.W. 1

Santosh plaintiff himself, P.W.2 Hadiram and P.W.3 Sukman

and exhibited documents Ex.P/1 Original will dated 02.09.96,

Ex.P/2 to P/6 Sale Deeds executed by defendant No.1, Ex.P/8

Order of the SDM, Ex.P/9 order dated 01.11.2003 passed by

the SDM, Ex.P/11 Application made before the SDM. The

defendants examined D.W.1 Premlal Patel, D.W.2 Girija

Shankar Awasthi, D.W.3 Kejuram Kutare, The defendants

exhibited Ex.D/1 Order of the Tahsildar dated 01.08.2003,

Ex.D/2 Order passed by the Collector dated 08.11.2006, Ex.D/3

Application for possession, Ex.D/4 and D/6 Application for

demarcation.

E) Santosh (PW-1) has been examined by way of an affidavit

reiterating the averments made in the plaint. The said witness

was cross-examined by the defendants wherein he has admitted

that at the time of recording of the will on 02.09.1996 he was not

present and in paragraph 73 of the evidence he has stated that

at the time of funeral when he has seen the key in the waist of

the deceased, he took out the key and opened lock of the box

wherein the will was found in which his name has been

mentioned. He has admitted that regarding this fact he has not

mentioned in the examination-in-chief. He has admitted that

Mundru was not bedridden but he used to move around in the

village. He has also admitted about the relationship with

Damodar, Hadiram and Shobharam.

F) Hadiram (PW-2) has been examined by the plaintiffs who is the

scriber of the said will (Ex P-1). He has stated that he has

written the will as per the version of the testator. The said

witness was cross-examined by the defendants wherein he has

stated that Santosh (PW-1) is his brother as he is son of his

maternal uncle and Damodar is also son of his maternal uncle

and Shobharam is brother-in-law of the plaintiffs. He has

admitted that plaintiff Veerbhadra's father was Patwari. This

witness has also admitted that when the will was written, at that

time, 4 persons were present i.e. himself, Damodar, Shobharam

and Mundru. He has also admitted that all the persons have put

their signature. He has also admitted that after scribing the will

Damodar has put his signature then Shobharam and later on he

has signed on the will.

G) On the pleadings of the parties the learned trial Court has

framed 9 issues. The issues No. 1 to 4 are relevant which are

as under :-

1. Whether the will executed by the father of defeated No. 1 Mundru Dhakad is valid?

2. Whether on the basis of will executed by father of defendant No. 1 Mundru Dhakad each of the plaintiffs are entitled for 1/4th share?

3. Whether entire sale deeds executed by the defendant No. 1 on 26.12.2002 are void and illegal ab initio?

4. Whether permanent injunction can be issued in favour of the plaintiffs against the defendants on the suit land?

H) Learned trial Court considering the evidence and materials on

record dismissed the suit of the plaintiffs by recording its finding

that no such evidence has been brought on record that who are

the attesting witnesses of the will and the witnesses claiming

themselves to be attesting witnesses have put their signature on

instruction of the testator. The witness Santosh (PW-1) has also

admitted that Shobha and Damodar have put their thumb

impression whereas from perusal of the will it is quite clear that

they have put their signature, as such there is contradiction and

omission in the will. The trial Court has also recorded its finding

that the attesting witness should be specified in the will itself

whereas there is no whisper about the witness who was

attesting witness which is violation of Section 63 of the

Succession Act, 1925. The trial Court has also recorded its

finding that the will has been placed on record on 01.08.2003 in

the proceeding drawn before the Naib Tahsildar Lohandiguda

whereas as per the plaintiffs the will was executed on

02.09.1996 and has recorded that if the will has not been made

effective immediately after the death of the executant of the will,

it creates doubt over the authentication/genuineness of the will,

accordingly it has dismissed the suit.

I) The appellate Court has also dismissed the appeal by affirming

the finding of the trial Court by re-appreciating the evidence and

materials on record. Being aggrieved with both the judgments

and decrees present appeal under Section 100 of the CPC has

been filed by the plaintiffs.

4. Learned counsel for the appellants would submit that the will is a

private document under Section 75 of the Evidence Act and in

the present case the witnesses have proved the factum of

execution of will and circumstances under which it has been

executed, as such, the plaintiffs have been able to prove the will

(Ex.P/1), therefore, the finding recorded by the learned trial

Court that will is not proved, is illegal and contrary to the law. He

would further submit that there is sufficient compliance of the

Section 63 of the Succession Act as the scriber of the will has

clearly stated that on the direction of the testator he has written

the will. He would further submit that since the plaintiffs rustic

villagers and they are not aware about technicalities of law of

will, as such he would submit that if there is any shortcoming

then it may be ignored and would pray for admission of the

appeal. To substantiate his submission he would refer to

judgment of Hon'ble Supreme Court in case of Gopal Krishan

vs. Daulat Ram {AIROnline 2025 SC 17}.

5. I have heard learned counsel for the appellants, perused the

document with utmost satisfaction.

6. From the above stated factual matrix it is quite vivid that the

witnesses of the will are interested witnesses as two witnesses

are brothers and one is brother-in-law of the plaintiffs. Even in

the will it has not been mentioned that who are the attesting

witnesses which is required to be mentioned in the will and their

evidence has to be brought on record that they are the attesting

witnesses. The witnesses examined by the plaintiffs failed to

establish that why a father will not give his entire self acquired

property to his own daughter and a very bald statement was

made regarding the marriage of Bhanumati with other person

which has annoyed him but no such circumstances have been

demonstrated. Even the defendants witness Kejuram DW-3 has

stated before the trial Court that at the time of death the

daughter, her husband and grand son were present. He has

also stated that Bhanumati has visited to Mundru one week

before his death. He has also stated that Mundru was ill for two

or three days and died and no cross-examination on this point

has been made.

7. The records of the case clearly demonstrate that the will has not

been proved as per Section 68 of the Evidence Act and all the

persons who were present at the time of execution of will are

relatives of the plaintiffs which clearly creates doubt over the

correctness and genuineness of the will. There are sufficient

circumstances which create doubt over the genuineness of the

will. This Court cannot lose sight of the fact that the deceased

expired on 27.10.1996, the alleged will has been executed

02.09.1996 and it has been produced after 11 years which also

creates doubt over the genuineness of the will.

8. From the aforesaid discussion, it is quite vivid that will is not

free from doubts. Whether compliance of Section 69 of the

Evidence Act is necessary for execution of the will or not has

come up for consideration before the Hon'ble Supreme Court in

Babu Singh and Others vs. Ram Sahai {2008 (14) SCC 754}

wherein considering the facts, Hon'ble Supreme Court has held

as under:-

"12. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender.

13. Section 69 of the Act reads, thus :

"Proof where no attesting witness found If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person."

14. It would apply, inter alia, in a case where the attesting

witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.

15. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved."

9. Hon'ble Supreme Cout in the case of Kavita Kanwar v. Mrs.

Pamela Mehta 2020 SCC online SC 464 has considered

unequal distribution of asset and procedure to distribute other

persons who are not his real sons and held as under :-

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; 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 16process. 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.

10. Hon'ble Supreme Court in the case of Murthy vs C.

Saradambal decided on 10 December, 2021 in Civil Appeal No.

4270 of 2010 has considered the incidental death of the testator

after execution of will and 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 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.

11.Considering the facts and law on the subject, it is quite vivid that

both the Courts below have recorded finding of facts that the

plaintiffs are unable to prove the will which neither suffers from

perversity or illegality requiring this Court to frame substantial

question of law which is sine-quo-non for admission of the

Second Appeal. The appeal deserves to be dismissed and

accordingly it is dismissed.

12. No order as to costs.

13. A decree be drawn up accordingly.

SSd/-/-

(Narendra Kumar Vyas) Digitally Judge signed by KISHORE KISHORE KUMAR KUMAR DESHMUKH DESHMUKH Date: