[Cites 9, Cited by 0]
Chattisgarh High Court
Satyaprakash Saraf vs Smt. Asha Saraf on 11 March, 2026
1
SATISH
TUMANE
Digitally
signed by
SATISH
TUMANE
Date:
2026.03.11
15:05:41
+0530
2026:CGHC:11562-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved on 13/02/2026
Pronounced on 11/03/2026
First Appeal No.35 of 2020
Satyaprakash Saraf, S/o Late Khatanand @ K. Anand Saraf, Aged About 51
Years, R/o House No.M./1174, Adarsh Nagar, Kushmunda, Tahsil Katghora,
District Korba (C.G.)
... Appellant/Plaintiff
versus
1 - Smt. Asha Saraf W/o Dharamprakash Saraf Aged 41 Years R/o House No.
I/22, 15 Block Colony, S.E.C.L. Korba (C.G.)
2 - Daramprakash Saraf S/o Late Khatanand @ K. Anand Saraf, Aged 56
Years, R/o House No. I /22, 15 Block Colony, S.E.C.L. Korba (C.G.)
3 - State Of Chhattisgarh Through Collector, Bilaspur (C.G.)
... Respondents/Defendants
For Appellant : Shri B. P. Gupta, Advocate
For Respondent No.1 : Shri Arvind Shrivastava, Advocate
For Respondent No.2 : Shri Dharam Prakash Saraf appears in
person
For Respondent No.3/State : Shri Kanwaljeet Singh Saini, Dy.GA
D.B.: Hon'ble Shri Justice Sanjay S. Agrawal
Hon'ble Shri Justice Amitendra Kishore Prasad
C A V Judgment
Per Sanjay S. Agrawal, J.
1) This appeal has been preferred by the plaintiff under Section 96 of the
Code of Civil Procedure, 1908, questioning the legality and propriety of
the judgment and decree dated 29/11/2019 passed by the Additional
District Judge, Bilaspur (C.G.) in Civil Suit No.55-A/2014, whereby, his
claim has been refused. The parties shall be referred hereinafter as per
their description before the trial Court.
2) The facts, which are essential for adjudication of this appeal, are that
the plaintiff instituted a suit claiming declaration to the effect that a
registered deed of Will, dated 05/09/2007 executed by his father,
namely, Khatanand in favour of his sister-in-law (Bhabhi), the
defendant No.1-Smt. Asha Saraf, with regard to the land in question
bearing Khasra No.748/2 admeasuring 0.38 decimal situated at Village
Tifra, Tehsil and District Bilaspur, be declared as null and void and,
praying further for issuance of injunction restraining her from creating
any third party interest over the alleged suit land.
3) According to the plaintiff, the alleged suit land was recorded in his
father's name in revenue papers, while the land adjoining to it, i.e., land
bearing Khasra No.748/5 admeasuring 0.38 acres was recorded jointly
in his name as well as of his brother's name, namely, Dharam Prakash
Saraf, the defendant No.2, who is the husband of said Smt. Asha
Saraf. It is pleaded further by the plaintiff that initially both these lands
were leased out to the Bharat Petroleum Corporation Limited for
running a Petrol Pump and, the possession of it was thereafter
obtained by them jointly in execution of a decree drawn on 01/12/1998
passed in Civil Suit No.69-A/1998 "Khatanand and another vs. Bharat
Petroleum Corporation Limited". It is pleaded further that after the
death of his father, he came to know regarding the execution of the
alleged registered deed of Will, dated 05/09/2007, when a closed
envelop was opened in his presence that it was bequeathed by his
father to the defendant No.1, who got the revenue papers mutated in
his absence based upon it vide order dated 25/07/2012 passed by the
Tehsildar, Bilaspur in Revenue Case No.155/A-6/2010-11.
4) Further of his plea is that he came to know, later on, in the month of
October, 2013, regarding the execution of the registered deed of Will,
dated 15/08/2008 and also the deed of arrangement made by his
father, whereby, the alleged lands were bequeathed by him in his
favour as well as of his brother-Dharam Prakash Saraf, the defendant
No.2 and, it was pleaded further that because of its execution, the
earlier Will has come to an end, but when it was not given effect to, he
was, therefore, constrained to institute a suit in the instant nature,
instituted on 11/03/2014.
5) While contesting the aforesaid claim, it was pleaded by the defendants
in their separate written statements that the total area of the land
bearing Khasra No.748/2 was 0.76 acres and, was initially owned in
equal share by their father-Khatanand and one Harish Chandra Saraf,
from whom, he purchased his share, while mentioning the name of his
bother nominally as well, which was re-numbered as Khasra No.748/5
admeasuring 0.38 acres adjoining to the suit land bearing Khasra
No.748/2 acres. It is contested further on the ground that the land in
question was bequeathed by his father in the name of his daughter-in-
law-Smt. Asha Saraf by executing a registered deed of Will dated
05/09/2007, who got the revenue papers recorded in her name well
within the knowledge of the plaintiff. It was contested further on the
ground that the alleged registered deed of Will produced by the
plaintiff, was executed by his father in the year 2003-04, but
subsequently, got it cancelled and the plaintiff while fabricating the
same in presence of two witnesses, has given the shape of it as a Will
dated 15/08/2008, wherein, the signature of his father was not there.
The plaintiff's claim, thus, deserves to be dismissed.
6) The trial Court, after considering the evidence led by the parties, held
that the registered deed of Will, dated 05/09/2007 (Ex.D-1) has been
executed by said Khatanad in favour of his daughter-in-law, i.e.,the
defendant No.1 as its execution was not denied by the plaintiff ; and
held further that the registered deed of Will, dated 15/08/2008 (Ex.P-1)
and the deed of arrangement made by said Khatanand, the father of
the plaintiff and defendant No.2 in their favour, is a fictitious one as
neither the date was mentioned near the signature of him, nor the
pages of it are in proper sequence and, while observing as such, has
dismissed the plaintiff's claim, while upholding the order dated
25/07/2012 passed by the Tehsildar, Bilaspur in Revenue Case
No.155/A-6/2010-11 recording the name of defendant No.1 in revenue
papers based upon the alleged registered deed of Will dated
05/09/2007 (Ex.D-1).
7) Shri B.P. Gupta, learned counsel appearing for the appellant/plaintiff
submits that the finding recorded by the trial Court upholding the due
execution, attestation and validity of the registered deed of Will dated
05/09/2007 (Ex.D-1), is apparently contrary to law, as its attesting
witnesses, namely, A.K. Tiwari and M.Y. Raje, have failed to prove its
due execution as required under Section 63 of the Indian Succession
Act, 1925 and, thereby erred further in upholding the order dated
25/07/2012 passed by the Tehsildar, Bilaspur in Revenue Case
No.155/A-6/2010-11, directing for the correction of revenue papers in
the name of defendant No.1-Smt. Asha Saraf based upon it. It is
contented further that the registered deed of Will dated 15/08/2008
(Ex.P-1) executed in favour of him and his brother, namely, Dharam
Prakash Saraf by his father Khatanand was duly proved by the
witnesses, therefore, its execution ought not to have been disbelieved.
8) On the other hand, learned counsel appearing for the respondent No.1
and, the respondent No.2-Dharam Prakash Saraf, who appeared in
person, submits that since the execution of the registered deed of Will
dated 05/09/2007 (Ex.D-1) was admitted by the plaintiff, therefore, its
execution was rightly upheld by the trial Court. While referring to the
registered deed of Will dated 15/08/2008 (Ex.P-1), it is contended
further that since the "date" near the signature of its executant, namely,
Khatanand was not there, nor its pages are in a proper manner,
therefore, its authenticity has rightly been held to be doubtful by the
trial Court. The respondent No.2, who appeared in person, has placed
his reliance upon the decisions rendered by the Supreme Court in the
matter of Bachhaj Nahar Vs. Nilima Mandal & Others, reported in
AIR 2009 SC 1103, Gopal Krishan and Others Vs. Daulat Ram and
Others, reported in (2025) 2 SCC 804, Metpalli Lasum Bai (Since
Dead) and Others Vs. Metapalli Muthaih (D) By LRs., reported in
2025 Live Law (SC) 734 and Nikhila Divyang Mehta vs. Hitesh P.
Sanghvi, reported in (2025) INSC 485.
9) We have heard learned counsel appearing for the parties and perused
the entire record.
10) The main questions which arise for determination in this appeal are :-
(a) Whether due execution, attestation and validity of the
registered deed of Will dated 05/09/2007 (Ex.D-1), purported
to have been executed by said Khatanand in favour of his
daughter-in-law (Bhabhi), namely, Smt. Asha Saraf, was duly
established by its propounder?
(b) Whether the registered deed of Will dated 15/08/2008
(Ex.P-1) has duly been executed by said Khatanand in favour
of his sons, i.e., plaintiff and defendant No.2 ?
11) Ex.D-1 is the registered deed of Will dated 05/09/2007 executed by
said Khatanand in respect of his land bearing Khasra No.748/2,
admeasuring 0.38 decimal in favour of his daughter-in-law, namely,
Smt. Asha Saraf, the defendant No.1, in presence of two witnesses
namely, A.K. Tiwari (DW-3) and M.Y. Raje (DW-5) and, a deed of
'Khulasanama' is the part of it. According to the statement of attesting
witness, namely, A.K. Tiwari (DW-3), it appears that he signed the
alleged document Ex.D-1 after its reading, but was not aware whether
he signed any other document apart from it or not. Further of his
testimony would show that since 'decimal' was mentioned therein,
instead of 'acres', therefore, for its clarification, a deed of
'Khulasanama' was prepared, but, which was not signed by him.
12) According to M.Y. Raje (PW-5), the another attesting witness, it
appears that the alleged Will (Ex.D-1) was typed at the Registration
Office, Korba, where, he put his signature and it was deposed further
suo moto that he signed a correction deed, i.e., 'Khulasanama' as well.
13) What is, therefore, reveals from their testimonies that the alleged
registered deed of Will (Ex.D-1) was signed by them, but none of them
have, however, stated that the alleged Will was read over to its
executor, namely, Khatanand or he signed on it, after its reading, so as
to hold that it was duly executed in accordance with Section 63 of the
Indian Succession Act, 1925. The said provision, which is relevant for
the purpose, provides as under :
63. Execution of unprivileged Wills.--"Every testator, not
being a soldier employed in an expedition or engaged in actual
warfare, [or an airman so employed or engaged,] or a mariner
at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by
his direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the writing as a
Will.
(c) 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 acknowledgment 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 witness be present at the same
time, and no particular form attestation shall be necessary".
14) A bare perusal of clause (c) of the aforesaid provision would show that
the Will shall be attested by two or more witnesses and, each of whom
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 him (testator), or has received from the testator a personal
acknowledgment of his signature or mark, or the signature of some
other person.
15) Since both the attesting witnesses, as revealed from their testimonies,
have failed to state that before its execution, it was either read over to
said Khatanand, or he signed after its reading, therefore, the due
execution and attestation of the alleged Will (Ex.D-1) cannot be held to
be executed in accordance with law. The said observation is fortified by
the principles laid down by the Supreme Court in the matter of Daulat
Ram and Others Vs. Sodha and Others, reported in (2005) 1 SCC
40, wherein it has been held at para 10 as under:-
"10. Will being a document has to be proved by primary
evidence except where the court permits a document to be
proved by leading secondary evidence. Since it is required to
be attested, as provided in Section 68 of the Indian Evidence
Act, 1872, it cannot be used as evidence until one of the
attesting witnesses 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. In addition, it has to satisfy the requirements of
Section 63 of the Indian Succession Act, 1925. In order to
assess as to whether the Will has been validly executed and is
a genuine document, the propounder has to show that the Will
was signed by the testator and that he had put his signatures to
the testament of his own free will; that he was at the relevant
time in a sound disposing state of mind and understood the
nature and effect of the dispositions and that the testator had
signed it in the presence of two witnesses who attested it in his
presence and in the presence of each other........"
16) It is to be seen further that the deed of 'Khulasanama' was the part of it
and according to the statement of A.K. Tiwari (DW-3), it was not signed
by him, while according to M.Y. Raje (DW-5), it was signed by him.
However, a bare perusal of the alleged 'Khulasanama' would reveal the
fact that none of them have, in fact, signed the same. Their testimonies
are, thus, not reliable, therefore, it cannot be said that the alleged
clarification deed 'Khulasanama' forming part of the registered deed of
Will dated 05/09/2007 was signed by them, or based upon their
testimonies, the due execution, attestation and validity of the Will
(Ex.D-1) could be held to be executed in accordance with law in favour
of defendant No.1-Smt. Asha Saraf, in view of the provisions
prescribed under Section 63 of the Indian Succession Act, 1925.
17) (i) Now, insofar as the principles laid down by the Supreme Court in the
matter of Gopal Krishan and others (supra), as relied upon by the
respondent No.2, is concerned, the same is, however, noted to be
distinguishable from the facts involved herein. As in the said matter, the
attesting witness of the Will had seen the deceased affixed his mark on
the Will and, therefore, it was held therein that the compliance of
Section 63 (c) of the Indian Succession Act, 1925 has duly been
complied with. However, in the instant matter, as observed
hereinabove, none of the attesting witnesses to the alleged registered
deed of Will dated 05/09/2007 (Ex.D-1) had seen the testator signed
the same. No reliance, therefore, could be placed upon it.
(ii) As far as the principles laid down in the matter of Metpalli Lasum
Bai (Since Dead) and Others (supra), is concerned, the same is also
distinguishable as in the said matter, the legatee was found to be in
possession of the land acquired under the registered deed of Will and
subsequently, the legatee's purchaser under the registered deed of
sale executed in pursuance thereof and which was not found to be
questioned. The said Will was, thus, found to be acted upon and in
view of the said factual scenario, a presumption was drawn regarding
due execution of the registered Will as signature of the testator was
found to be accepted by him, i.e. the testator's son. However, such a
position is not here, so as to place reliance upon it.
(iii) Likewise, the principles laid down in the matter of Nikhila Divyang
Mehta (supra), is of no use as that is the case where a suit questioning
the validity of the registered Will was held to be barred by time as it
was instituted much beyond the period of three years provided under
Article 58 of the Indian Limitation Act, 1963 from the date of its
knowledge. Insofar as the principles laid down in the matter of
Bachhaj Nahar (supra), is concerned, the same is, however, made
entirely on different footings, as such, no reliance could be placed upon
it.
18) Now, insofar as the registered deed of Will dated 15/08/2008 (Ex.P-1)
executed by Khatanand in favour of his sons, i.e.,the plaintiff and
defendant No.2, is concerned, the same, however, appears from its
bare perusal that one of its page was not signed by him. Therefore, its
authenticity cannot be upheld as well.
19) In view of the aforesaid background, the due execution, attestation and
validity of both the registered deed of Will dated 05/09/2007 (Ex.D-1)
as well as, the Will dated 15/08/2008 (Ex.P-1), thus cannot be upheld.
20) Consequently, the appeal preferred by the plaintiff against the
impugned judgment and decree, dated 29/11/2019 passed by the
Additional District Judge, Bilaspur (C.G.) in Civil Suit No.55-A/2014, is
allowed in part and, the execution of the registered deed of Will dated
05/09/2007 (Ex.D-1) executed by Khatanand in favour of the defendant
No.1 and the order dated 25/07/2012 passed by the Tehsildar, Bilaspur
in Revenue Case No.155/A-6/2010-11 are held to be invalid; and, the
execution of the registered deed of Will dated 15/08/2008 (Ex.P-1)
executed by the said Khatanand in favour of his sons i.e. plaintiff and
defendant No.2 is also held to be invalid.
No order as to cost.
A decree be drawn accordingly.
SD/- SD/-
(Sanjay S. Agrawal) (Amitendra Kishore Prasad)
Judge Judge
Tumane
