Amritlal vs Smt. Nihoti Bai
2026 Latest Caselaw 1761 Chatt

Chattisgarh High Court

Amritlal vs Smt. Nihoti Bai on 17 April, 2026

                                                      1




                                                                        2026:CGHC:17647
JYOTI
SHARMA
Digitally signed by
JYOTI SHARMA
Date: 2026.04.21
                                                                                  NAFR
11:26:41 +0530



                            HIGH COURT OF CHHATTISGARH AT BILASPUR

                                            SA No. 615 of 2025

                      Amritlal S/o Late Bhuvanlal Dewangan Aged About 65 Years R/o
                      Village Lasatola, Tehsil Gunderdehi And District Balod,
                      Chhattisgarh
                                                                     ... Appellant(s)
                                                   versus
                      1. Smt. Nihoti Bai D/o Late Bhuvanlal Dewangan Aged About 70
                      Years R/o Village Suregaon, Tehsil Doundilohara, District : Balod,
                      Chhattisgarh

                      2. Smt. Puhpi Bai D/o Late Bhuvanlal Dewangan Aged About 60
                      Years R/o Village Hadgahan, Tehsil Gunderdehi, District : Balod,
                      Chhattisgarh

                      3. Smt. Bimla Bai D/o Late Bhuvanlal Dewangan Aged About 55
                      Years R/o Village Kasahi, Tehsil Doundilohara, District : Balod,
                      Chhattisgarh

                      4. Smt. Amita D/o Late Bhuvanlal Dewangan Aged About 50 Years
                      R/o Village Hadgahan, Tehsil Doundilohara, District : Balod,
                      Chhattisgarh

                      5.State Of Chhattisgarh Through The Collector, Balod, District :
                      Balod, Chhattisgarh
                                                                  ... Respondent(s)

For Appellant(s) : Mr. Vidya Bhushan Soni, Advocate

For Respondent No. 1 : Mr. Ramesh Kumar Nayak, Advocate

For Respondent/ : Mr. Anand Gupta, Dy. G.A. State

Hon'ble Shri Bibhu Datta Guru, Judge

Judgment on Board

17.04.2026

1. The defendant No. 1/ appellant, has preferred this second

appeal under Section 100 of the Code of Civil Procedure,

1908 (for brevity CPC) against the judgment & decree dated

30.09.2025 passed by the Learned Principal District Judge,

Balod, C.G. in Civil Appeal No. 17A/2021 (Amritlal Vs. Smt.

Nihoti Bai & Ors.) arising out of the judgment and decree

dated 09.11.2021 passed by the Trial Court in Civil Suit No.

42A/2016 (Smt. Nihoti Bai & Ors Vs. Amritlal. ) whereby the

learned trial Judge has allowed the suit of the plaintiff/

respondent. For the sake of convenience, the parties would

be referred as per their status before the learned trial Court.

2. The plaintiff instituted the suit seeking declaration of title,

partition, separate possession of their share, and a

declaration that the registered Will dated 22.10.2009

allegedly executed in favour of defendant No.1 is illegal, void

and inoperative pleading inter alia that the plaintiffs

(respondents No. 1 to 3 herein) and defendant Nos.1 & 3

(appellant and respondent No. 4 herein) are members of the

same family and are the children/legal heirs of late Bhuvanlal

Devangan, while defendant No.2 is his widow. Late Bhuvanlal

was owner and in possession of agricultural lands situated at

Village Lasotola, Tahsil Gunderdehi, District Balod,

comprising 9 khasra numbers admeasuring 2.490 hectares,

and at Village Basin comprising 5 khasra numbers

admeasuring 1.490 hectares. According to the plaintiffs, the

suit properties were ancestral properties inherited by

Bhuvanlal from his forefathers/father, and no partition had

ever taken place amongst the family members. It was further

pleaded that Bhuvanlal died on 20.12.2014 and, for about six

years prior to his death, he was old, seriously ill, physically

weak and mentally unsound, having lost his capacity to

understand matters properly, with weak eyesight and

impaired hearing. Taking undue advantage of his physical

and mental condition, defendant No.1 Amritlal, in collusion

with others, allegedly got a registered Will dated 22.10.2009

executed in his favour in respect of the movable and

immovable properties of Bhuvanlal, with the intention of

depriving the plaintiffs of their lawful share. The plaintiffs

further pleaded that on the basis of the said Will, defendant

No.1 got his name mutated in the revenue records without

impleading or issuing notice to the plaintiffs. On gaining

knowledge thereof, the plaintiffs preferred a revenue appeal

before the Sub-Divisional Officer, Gunderdehi, which came to

be dismissed by order dated 31.08.2016. Thereafter, as cloud

had been cast over their rights, the plaintiffs filed the present

civil suit contending that no valid Will was ever executed by

Bhuvanlal in favour of defendant No.1 and that after the death

of Bhuvanlal, the plaintiffs, along with defendant Nos.1 to 3,

succeeded to the suit properties by inheritance and were

entitled to equal share therein.

3. Defendant Nos.1 to 3, in their written statement, admitted the

relationship between the parties and pleaded that the

plaintiffs and defendant Nos.1 & 3 are the children of late

Bhuvanlal, while defendant No.2 is his widow. It was

contended that the lands situated at Village Basin were

purchased by Bhuvanlal from his own earnings and

constituted his self-acquired property. It was further pleaded

that the land situated at Village Lasotola bearing Khasra

No.644 admeasuring 0.08 hectare was also purchased by

Bhuvanlal from one Bhagtaram, while the remaining lands

had fallen to his share in partition amongst his brothers. The

defendants further asserted that late Bhuvanlal, of his own

free will and without any pressure or undue influence,

voluntarily executed a registered Will dated 22.10.2009 in

favour of his son, defendant No.1, in presence of witnesses,

bequeathing his properties to him. On the strength of the said

Will, the name of defendant No.1 was duly mutated in the

revenue records in respect of the movable and immovable

properties situated at Villages Lasotola and Basin after proper

proceedings before the revenue authorities. It was also

pleaded that the plaintiffs had challenged the mutation order

by filing a revenue appeal before the Sub-Divisional Officer,

Gunderdehi, being Case No.023/06 of 2015-16, which was

dismissed on 31.08.2016. According to the defendants, since

the properties were self-acquired properties of Bhuvanlal and

the registered Will was validly executed, defendant No.1

became the exclusive owner of the suit properties and the

plaintiffs had no right, title or share therein. On these grounds,

dismissal of the suit was prayed for.

4. After framing the issues, the trial Court, upon appreciation of

the oral and documentary evidence, held that the plaintiffs

and defendants were the Class-I heirs of late Bhuvanlal. It

found that a part of the suit property situated at village Basin

and Khasra No. 644 of village Lasatola had been purchased

by Bhuvanlal from his own earnings, while the remaining land

at village Lasatola had fallen to his share in an earlier partition

among the brothers. The Court observed that after partition,

such property assumed the character of separate/self-

acquired property of Bhuvanlal. With regard to the registered

Will dated 22.10.2009 propounded by defendant No.1, the

trial Court held that although the plaintiffs failed to prove

forgery, the defendants also failed to prove due execution and

attestation of the Will in accordance with law. The attesting

witness did not satisfactorily depose that the testator had

signed the Will in his presence or that the document was duly

attested as required under Section 63 of the Indian

Succession Act read with Section 68 of the Evidence Act. The

evidence further disclosed suspicious circumstances,

including inconsistent signatures of the testator, uncertainty

as to whether the Will was read over to him, and contradictory

statements regarding the persons present at the time of

execution. The Court further found that Bhuvanlal remained

mentally and physically capable till shortly before his death,

but since the Will was not duly proved, it could not confer

exclusive title upon defendant No.1. Consequently, the Court

treated Bhuvanlal as having died intestate, and held that his

estate would devolve upon all Class-I heirs under Section 8 of

the Hindu Succession Act. Accordingly, the suit was decreed

by declaring the parties as co-owners of the suit property,

declaring the unproved Will as not binding on the plaintiffs,

and granting the plaintiffs 3/6 share with a right to seek

partition and separate possession.

5. Aggrieved by the said judgment and decree dated

09.11.2021, the defendant No. 1 preferred a First Appeal

under Section 96 of the Code of Civil Procedure before the

learned First Appellate Court. The learned First Appellate

Court, on re-appreciation of the entire evidence on record,

affirmed the findings recorded by the Trial Court and allowed

the appeal by the impugned judgment. Hence, the present

appeal.

6. Learned counsel for the appellant submits that both the

Courts erred in law in placing the entire burden upon

defendant No.1 to prove the registered Will dated 22.10.2009,

while ignoring that the plaintiffs, who challenged the Will as

forged and invalid, were first required to discharge their

burden under Section 101 of the Evidence Act. It is contended

that in absence of cogent evidence led by the plaintiffs

regarding fraud, coercion, undue influence or incapacity of

the testator, the Will could not have been discarded. It is

further argued that the registered Will carried a presumption

of genuineness and, therefore, the findings of the Courts

treating late Bhuvanlal as having died intestate are contrary to

law and the settled principles relating to burden of proof.

7. I have heard learned counsel for the appellant on the question

of admission, and the impugned judgments and decrees

passed by the learned trial Court as also the learned First

Appellate Court have been carefully examined.

8. The contention raised by learned counsel for the appellant

cannot be accepted. It is settled law that the burden to prove

a Will squarely lies upon its propounder and the person

claiming benefit thereunder. Since defendant No.1 claimed

exclusive title over the suit property on the strength of the

registered Will dated 22.10.2009, it was incumbent upon him

to establish its due execution and attestation in the manner

required under Section 63 of the Indian Succession Act read

with Section 68 of the Evidence Act, and also to remove all

suspicious circumstances surrounding its execution. Mere

registration of the Will does not raise any conclusive

presumption of validity so as to shift the burden upon the

plaintiffs. As the appellant failed to discharge the said burden,

no title could be claimed by him solely on the basis of the

alleged Will.

9. From material available on record, it is apparent that the

learned First Appellate Court, upon reappreciation of the

entire oral and documentary evidence, affirmed the judgment

and decree of the Trial Court and dismissed the appeal. It

held that the appellant failed to establish that the suit

properties were exclusively self-acquired properties of late

Bhuvanlal Dewangan. The Court found that the land situated

at Village Lasatola had devolved upon Bhuvanlal from his

father in family partition and, therefore, retained the character

of ancestral/joint family property, whereas the land at Village

Basin was purchased by Bhuvanlal. The Appellate Court

further held that the registered Will dated 22.10.2009

propounded by defendant No.1 was not proved in

accordance with law. It observed that the attesting witness

did not support the due execution and attestation of the Will

and admitted in cross-examination that he had not seen

Bhuvanlal sign the document. Material inconsistencies were

also noticed in the evidence of the defendant and the

attesting witness regarding execution of the Will. In view of

such suspicious circumstances and non-compliance with the

legal requirements for proof of a Will, the Court held that the

Will could not be relied upon. Consequently, it was held that

after the death of Bhuvanlal, his legal heirs were entitled to

succeed to the suit property, and the decree granting the

plaintiffs their share and separate possession was just and

proper. Finding no illegality or perversity in the Trial Court's

judgment, the appeal was dismissed and the decree dated

09.11.2021 was maintained.

10. The Supreme Court in the matter of Gopal Krishan and Ors.

Vs. Daulat Ram and Ors. 2025 (2) SCC 804 laid down the

principles which are required for proving of a WILL. Para 15 of

the said decision reads as under:-

15. The requisites for proving of a will are well

established. They were recently reiterated in a

judgment of this Court in Meena Pradhan v.

Kamla Pradhan. See also Shivakumar v.

Sharanabasappa, The principles as summarised

by the former are reproduced as below: (Meena

Pradhan cases, SCC pp. 737-38, para 10)

"10.... 10.1. The court has to consider two

aspects: firstly, that the will is executed by the

testator, and secondly, that it was the last will

executed by him:

10.2. It is not required to be proved with

mathematical accuracy, but the test of satisfaction

of the prudent mind has to be applied.

10.3. A will is required to fulfil all the formalities

required under Section 63 of the Succession Act,

that is to say:

(a) The testator shall sign or affix his mark to

the will or it shall be signed by some other

person in his presence and by his direction and

the said signature or affixation shall show that

it was intended to give effect to the writing as a

will;

(b) It is mandatory to get it attested by two or

more witnesses, though no particular form of

attestation is necessary;

(c) Each of the attesting witnesses must have

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 acknowledgment of such signatures;

(d) Each of the attesting witnesses shall sign

the will in the presence of the testator,

however, the presence of all witnesses at the

same time is not required.

10.4. For the purpose of proving the execution of

the will, at least one of the attesting witnesses,

who is alive, subject to the process of court, and

capable of giving evidence, shall be examined;

10.5. The attesting witness should speak not only

about the testator's signatures but also that each

of the witnesses had signed the will in the

presence of the testator.

10.6 If one attesting witness can prove the

execution of the will, the examination of other

attesting witnesses can be dispensed with;

10.7. Where one attesting witness examined to

prove the will fails to prove its due execution, then

the other available attesting witness has to be

called to supplement his evidence;

10.8. Whenever there exists any suspicion as to

the execution of the will, it is the responsibility of

the propounder to remove all legitimate

suspicions before it can be accepted as the

testator's last will. In such cases, the initial onus

on the propounder becomes heavier;

10.9. The test of judicial conscience has been

evolved for dealing with those cases where the

execution of the will is surrounded by suspicious d

circumstances. It requires to consider factors

such as awareness of the testator as to the

content as well as the consequences, nature and

effect of the dispositions in the will, sound, certain

and disposing state of mind and memory of the

testator at the time of execution; testator

executed the will while acting on his own free will;

10.10. One who alleges fraud, fabrication, undue

influence et cetera e has to prove the same.

However, even in the absence of such

allegations, if there are circumstances giving rise

to doubt, then it becomes the duty of the

propounder to dispel such suspicious

circumstances by giving a cogent and convincing

explanation:

10.11. Suspicious circumstances must be "real,

germane and valid" and not merely "the fantasy of

the doubting mind [Shivakumar v.

Sharanabasappa". Whether a particular feature

would qualify as "suspicious" would depend on

the facts and circumstances of each case. Any

circumstance raising suspicion legitimate in

nature would qualify as a suspicious

circumstance, for example, a shaky signature, a

feeble mind, an unfair and unjust disposition of

property, the propounder himself taking a leading

part in the making of the will under which he

receives a substantial benefit, etc."

11. Even otherwise, the scope of interference in a Second Appeal

under Section 100 of the Code of Civil Procedure is extremely

limited. Interference is permissible only when the appeal

involves a substantial question of law. Concurrent findings of

fact recorded by both the Courts cannot be interfered with

unless such findings are shown to be perverse, based on no

evidence, or contrary to settled principles of law.

12. In the present case, both the Trial Court and the First

Appellate Court have concurrently recorded findings, on the

basis of evidence available on record, that the appellants/

defendant failed to establish their case by placing cogent and

sufficient material. The appellant has failed to demonstrate

any perversity, illegality, or misapplication of law in the

findings so recorded.

13. The questions sought to be raised in the present Second

Appeal essentially relate to re-appreciation of evidence and

challenge to concurrent findings of fact. Such questions do

not give rise to any substantial question of law within the

meaning of Section 100 of the Code of Civil Procedure.

14. It is well established that when there is a concurrent finding of

fact, unless it is found to be perverse, the Court should not

ordinarily interfere with the said finding.

15. In the matter of State of Rajasthan and others Vs. Shiv

Dayal and another, reported in (2019) 8 SCC 637, reiterating

the settled proposition, it has been held that when any

concurrent finding of fact is assailed in second appeal, the

appellant is entitled to point out that it is bad in law because it

was recorded de hors the pleadings or 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.

16. Be that as it may, the argument advanced by learned counsel

for the appellant and the proposed question of law cannot be

regarded as satisfying the test of being 'substantial question

of law' within the meaning of Section 100 of CPC. These

questions, in my view, are essentially question of facts. The

appellant failed to raise any substantial question of law which

is required under Section 100 of the CPC. In any event, the

Second Appeal did not involve any substantial question of law

as contemplated under Section 100 of the CPC, no case is

made out by the appellant herein. The judgments impugned

passed by the learned trial Court as as well as by the learned

First Appellate Court are just and proper and there is no

illegality and infirmity at all.

17. On perusal of the record of the case and in view of the above

settled legal proposition, I find absolutely no merit in this

appeal, as it does not involve any question of law, much less

any substantial question of law within the meaning of Section

100 of the CPC. In my view, the judgment and decree passed

by both the Courts appear to be just, proper and legal. The

findings recorded are based on proper appreciation of

evidence available on record and there is no illegality or

perversity in the same and they does not call for any

interference.

18. Consequently, the Second Appeal fails and is hereby

dismissed resulting in upholding the judgment and decree

passed by the learned Appellate Court.

SD/-

(Bibhu Datta Guru) Judge Jyoti