1 2025:CGHC:51398 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 130 of 2016 Rukmani Devi Wd/o Late Tulsi Singh, Aged About 60 Years Caste- Rajput, R/o Village- Jurgum, Jashpur Nagar, Tahsil And Distt. Jashpur, Civil And Revenue Distt. Jashpur, Chhattisgarh ...........Plaintiff, --- Appellant versus 1 - Smt. Kamla Devi W/o Late Sher Bahadur Singh, Aged About 60 Years. 2 - Narayan Singh S/o Late Sher Bahadur Singh, Aged About 40 Years . 3 - Jagarnath Singh S/o Late Sher Bahadur Singh, Aged About 30 Years . 4 - Ashok Singh S/o Late Sher Bahadur Singh, Aged About 27 Years . 5 - Santosh Singh S/o Late Sher Bahadur Singh, Aged About 25 Years, All are R/o Madhuvantoli, Jashpur Nagar, Distt. Jashpur, Chhattisgarh --- Respondents ____________________________________________________________ For Appellant : Mr. M.K. Sinha, Advocate For Respondents : Mr. J.K. Saxena, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board 15.10.2025. 1. This second appeal U/s.100 of C.P.C. is filed by appellant/plaintiff questioning the legality and sustainability of the impugned judgment and decree dated 28.11.2015, passed in Civil Appeal No. 2-A/2015, whereby, learned District Judge, Jashpur, District Jashpur (C.G.) partly allowed the appeal filed by appellant/plaintiff arising out of the judgment and decree dated 22.12.2014, in Civil Suit No.9-A/2006 BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.11.14 11:01:17 +0530 2 wherein learned 1st Civil Judge Class -1, Jashpur, District – Jashpur dismissed the suit of the plaintiff. 2. The facts relevant for disposal of this appeal are that appellant/plaintiff filed a civil suit for declaration of title and possession in respect of the suit land bearing Kh. No.352/1(B), area 0.02 acres, situated at Village Jurgum, Jashpur Nagar, District Jashpur and also to declare the order dated 07.08.2001, passed in Revenue Case No.13/A-6/2000-2001 to be null and void, pleading therein that the suit land was initially recorded in the name of Late Ratan Singh, S/o. Ramnarayan Singh. Tulsi Singh is son of late Ratan Singh, plaintiff is wife of late Tulsi Singh and daughter-in-law of late Ratan Singh. Plaintiff is presently residing in the house constructed on the suit land as widow of late Tulsi Singh. It was further pleaded that suit land was granted to late Ratan Singh on lease and lease deed was executed and name of Ratan Singh was recorded in the revenue recorded in the year 1958- 59 up till 1981-82. Father in-law of plaintiff constructed a house on the suit land remained owner and occupant of the said land and he has been regularly paying rent and property tax every year. Father-in-law of the plaintiff, having been misguided, executed a Will on 16.05.1980, bequeathing the suit land in favour of Tule Singh, son of Maitraj Singh, and Tulsi Singh, son of Late Ratan Singh, which was duly registered on 19.05.1980. Subsequently, he executed another Will on 16.01.1981, bequeathing the entire suit land solely in favour of his son, Tulsi Singh, thereby revoking the earlier registered Will dated 16.05.1980. Consequently, upon the execution of the Will dated 16.01.1981, Tule Singh ceased to have any right, title, or interest in the 3 suit land. Ratan Singh passed away on 06.03.1981, thereafter, on the basis of the Will dated 16.01.1981, name of Tulsi Singh, husband of the plaintiff, was duly recorded in revenue records and the Nazul Maintenance Khasra. It was pleaded that husband of the plaintiff, Tulsi Singh, during his lifetime, executed a registered Will on 15.04.1987, bequeathing the suit property in favour of the plaintiff. Tulsi Singh passed away on 12.11.1987. After his death, due to ignorance, the plaintiff could not get her name recorded in the revenue records. It was further pleaded that earlier, in the year 1990, when one Vinod Kumar, son of Hanuman Prasad Jain, attempted to interfere with the plaintiff’s possession of the suit land on the basis of a sale deed dated 11.04.1966 executed by her father-in-law, Ratan Singh, in favour of Fulchand with respect to the said land, the plaintiff filed Civil Suit No. 44-A/1999. The suit was decreed in her favour by judgment and decree dated 20.11.2000. It was pleaded that after death of Tulsi Singh, in accordance with the provisions of the Hindu Succession Act and on the basis of the Will dated 15.04.1987, plaintiff automatically became owner and possessor of suit land. Plaintiff filed an application for execution of the judgment and decree before the Court of the Sub- Divisional Officer, Jashpur, in the year 2001–02, which was registered as Revenue Case No. 5/A-6. The defendants objected to the said application, contending that the suit land was recorded in their names. Subsequently, upon obtaining information through her advocate, plaintiff came to know that, by order dated 07.08.2001 passed in Revenue Case No. 13/A-6/2000-01, the name of the plaintiff’s husband had been deleted from the revenue records pertaining to the suit land, and the names of the defendants was recorded in his place. 4 It was further pleaded that the said order was passed without affording any opportunity of hearing to the plaintiff, and that the defendants have no ownership rights over the suit land. Aggrieved by the said order, the plaintiff filed an appeal before the Collector, Jashpur Nagar, on 23.04.2002, which was dismissed on 01.10.2002 on the ground of limitation. Thereafter, the plaintiff preferred a second appeal before the Revenue Board, Chhattisgarh, Bilaspur, which was dismissed on 11.09.2003. The aforesaid orders adversely affected the plaintiff’s ownership and possession over the suit property. The cause of action, therefore, arose on 07.08.2001, 01.10.2002, and 11.09.2003, i.e., on the dates when the orders were passed by the Sub-Divisional Officer, Collector, and Revenue Board, respectively. 3. Defendants filed their written statements and denied the adverse pleading made in the plaint. It was pleaded that after death of Tulsi Singh, plaintiff married Virendra Yadav, resident of Jashpur, and has been living with him as husband and wife and she is no longer widow of Tulsi Singh. It was further pleaded that the plaintiff is not paying any rent for the suit land; rather, the rent is being paid by the defendants. Ratan Singh, father-in-law of the plaintiff, after due consideration and with full knowledge of the consequences, voluntarily executed a Will in respect of the suit land in favour of Tule Singh, son of Metraj Singh and Tulsi Singh on 16.05.1980, which was duly registered in the office of the Sub-Registrar on 19.05.1980. On the basis of the said Will, defendants claim to declare them as the title holders of the suit land. It was further pleaded that plaintiff, having married Virendra Singh and living with him as his wife, cannot be considered the widow 5 of Tulsi Singh, and therefore she has no ownership rights over the suit land. It was also stated that Ratan Singh passed away on 06.01.1981, as per the death certificate issued by Nagar Panchayat, Jashpur. Therefore, the alleged subsequent Will dated 16.01.1981 was fraudulently executed by impersonating another person as the testator. Plaintiff had preferred appeals against the mutation order before the Collector, Jashpur, and the Revenue Board, which were dismissed as time-barred, thereby confirming the order of the Sub-Divisional Officer. 4. Learned trial Court based on the pleadings made by respective parties, formulated as many as 7 issues for consideration. After conclusion of trial and upon appreciation of the oral and documentary evidence adduced by the respective parties, held that the plaintiff failed to prove her case and dismissed the suit. 5. The Judgment and decree passed by learned trial Court was put to challenge in appeal U/s. 96 of the Code of Civil Procedure by the plaintiff and learned first Appellate Court partly allowed the appeal filed by the plaintiff/appellant by impugned judgment and decree setting aside the judgment and decree of learned trial Court holding that plaintiff is entitled for 1/2 portion of suit land as per Will dated 16.05.1980. Learned First Appellate Court further not found proved the Will deed dated 16.01.1981. The learned First Appellate Court further declare the the order dated 07.08.2021 passed in Revenue Case No.13/A-6/2000-2001 to be null and void. 6. Aggrieved by the finding of the learned First Appellate Court declaring the plaintiff to be the owner of only half share of the suit land, the appellant/plaintiff has preferred this second appeal. 6 7. Learned counsel for appellant/plaintiff submits that learned trial Court fell into error in dismissing the suit of the plaintiff in its entirety observing that the plaintiff is not having right and title over the property in dispute even after recording a finding that the property, subject matter of the suit was obtained by father-in-law of plaintiff on lease. He contended that the learned trial Court while considering the successory right of the plaintiff has erroneously observed that the land, subject matter of the suit was received on patta, as such Ratan Singh was not having title, therefore, it cannot pass upon the plaintiff after his death. He next contended that learned trial Court and Appellate Court erred in recording a finding that the Will executed on 06.01.1981 in favour of Tulsi Singh, husband of plaintiff by Ratan Singh (her father in law) to be not proved and suspicious taking into consideration the date of death as projected by defendant as 06.01.1981 instead 06.03.1981 according to the document obtained and placed in record by the plaintiff said to be issued by the Municipal Corporation, Jashpur mentioning the date of death of Ratan Singh to be 06.03.1981. He also contended that the defendant has also not examined any attesting witness of the Will executed in his favour dated 16.05.1980 along with Tulsi Singh, therefore, it cannot be said that the Will has been proved in accordance with law. 8. Learned counsel for respondents/defendants would oppose the submission of learned counsel for appellant an would submit that death certificate dated 06.03.1981 produced by appellant/plaintiff is not found proved as the original document/certified copy of the document is not placed before the Court but only photocopy is placed, 7 therefore, it was not marked as exhibit. He next contended that learned trial Court has categorically recorded a finding that death of Ratan Singh was on 06.01.1981 taking note of Ex.D-5, which is the certificate issued by the Statistical Department. He also contended that the Will on which reliance is placed by the appellant/plaintiff dated 16.01.1981 prima-facie was executed after death of Ratan Singh. It is also pointed out that attesting witness to the Will dated 16.01.1981 was also not examined, therefore, the Will executed in favour of Tulsi Singh is not proved in accordance with the provisions under Section 63 of the Indian Succession Act, 1925 (In short ‘the Act of 1925’) and 68 of the Evidence Act. Lastly he contended that submission of learned counsel for appellant that the Will executed in joint name of Tulsi Singh and Tulesh Singh on 16.05.1980 is not proved by examining attesting witness is not correct because plaintiff herself had admitted the fact of execution of Will (Ex.D-10) and is a registered Will. Plaintiff (P.W.-1) in her evidence in chief had admitted that the Will was executed and it was also got registered. The fact admitted is not required to be proved. Learned First Appellate Court has rightly allowed the appeal filed by the appellant in part and have given right to the plaintiff on part of the share of Tulsi Singh which accrued to him in his favour based on the Will dated 16.05.1980. The order passed by the learned First Appellate Court is on proper appreciation of evidence and in accordance with law, hence, it does not call for any interference. 9. I have heard learned counsel for parties and perused record of trial Court as well as First Appellate Court. 8 10. This appeal is admitted for hearing on following substantial questions of law :- (I) Whether the appellant/plaintiff is entitled for declaration of title over the suit property under the provision of Hindu Succession Act? (II) Whether the trial Court has erred in dismissing the civil suit and the First Appellate Court has erred in partly allowing the appeal by giving half share in favour of the defendants on the basis of the Will dated 16.05.1980 (Ex.D1) though the same has not proved by the defendants?” 11. It is not in dispute that the suit land was the property owned and possessed by late Ratan Singh, who obtained the suit land on lease from government in the year 1955. It is also not in dispute that late Ratan Singh during his lifetime executed a registered Will deed dated 16.05.1980 bequeathing the suit land in favour of Tulesingh, S/o. Metraj Singh and Tulsi Singh. Tulsi Singh is son of late Ratan Singh and plaintiff – Rukmani is wife of Tulsi Singh and daughter-in-law of late Ratan Singh. 12. As per plaint, plaintiff claimed that after execution of Will dated 16.05.1980, Ratan Singh executed new Will date 16.01.1981 by revoking his earlier Will dated 16.05.1980 bequeathing the suit land to his only son Tulsi Singh. Thereafter, plaintiff/appellant acquired the suit land through Will dated 15.04.1987 executed by Tulsi Singh in her favour and obtained ownership right over the same. 13. To prove her case, plaintiff – Rukmani examined herself as (P.W.-1), Moin Alam (P.W.-2), Ashok Jain (P.W.-3) and Sub-Registrar Saheb 9 Ram as (P.W.-4) and submitted certified copy of order dated 01.10.2002 of Collector Jashpur as (Ex.P.-1), copy of order dated 11.09.2003 of the Revenue Board, Bilaspur as (Ex.P.-2), certified copy of order dated 07.08.2001 of Sub-Divisional Officer, Jashpur (Ex.P.-3), Khasra of suit land of year 1985-86 as (Ex.P.-4), Khasra of the year 1989-90 as (Ex.P.-5), Khasra of year 1993-94 as (Ex.P.-6), Khasra of the year 1998-99 (Ex.P.-7). Khasra of year 2002-03 (Ex.P.-8). Nazul Khasra from year 56-57 to 59-60 (Ex.P.-9), Khasra from year 1964-65 to 1967-68 (Ex.P.-10) and Khasra of year 1968-69 to 1971-72 (Ex.P- 11) and from 1972-73 to 1975-76 (Ex.P.-12), Khasra from 1976-77 to 1979-80 (Ex.P.-13) and from 1980-81 to 1983-84 as (Ex.P.-14), receipt of Nagar Panchayat Jashpur dated 15.11.03 (Ex.P.-15). Original will executed by Ratan Singh in favour of Tulsi Singh (Ex.P-16). Will executed by Tulsi Singh in favour of plaintiff as (Ex.P-17), certified copy of Death Registration Register as (Ex.P-18, 18A, 18B). Revenue Case Register (Ex.P. 19), Death Certificate of Tulsi Singh (Ex.P-20), application submitted in Nagar Palika Jashpur (Ex.P-21) and letter given by Public Information Officer (Ex.P-22), Miscellaneous Receipt dated 02.01.07 (Ex.P-23), Letter (Ex.P-24) issued by Public Information Officer Jashpur and letter (Ex.P-25), Letters (Ex.P-26 and 27) sent by Public Information Officer for depositing fee. Judgment and decree in Civil Suit No. 44A/99 Ex.P-28, Certified copy of Will (Ex.P- 29) and Certified copy of Will executed by Tulsi Singh in favour of plaintiff (Ex.P.-30), certified copy of order sheet from 04.03.82 to 13.10.82 as (Ex.P.-31). 10 14. Defendants have examined Jagannath Singh as (D.W.-1), Mansiddh Junul Toppo as (D.W.-2), Vinod Thapa as (D.W.-3) and placed on record maintenance khasra of year 1998-99 to 2001 to 02 of the plot No.152/1B of village Jurgum as (Ex.D-1), maintenance khasra of year 2002-03 to 2005-06 as Ex.D-2 and of year 2006-07 as Ex.D-3, receipt of deposit of nazul rent as Ex.D.-4, original death certificate of Ratan Singh as (Ex.D-5), affidavit with regard to marriage of Rukmani Devi and Virendra Yadav as Ex.D-6 and Ex.D-7 and challan as Ex.D-8, order-sheet from 04.03.1982 to 13.10.1982 as Ex.D-9, Will deed executed by Ratan Singh in favour of Tule Singh as Ex.D.-10. 15. Plaintiff in her evidence stated as per the pleading made in the plaint. She further deposed that her husband Tulsi Singh acquired the suit land on the basis of Will dated 16.01.1981 (Ex.P-16) executed by Ratan Singh in favour of his only son Tulsi Singh after cancelling his earlier Will dated 16.05.1980 and thereafter, she acquired ownership right of the land on the basis of the Will executed by her husband Tulsi Singh in her favour on 15.04.1987 (Ex.P-30). In cross-examination, she admitted the execution of registered Will deed with respect to suit land by Ratan Singh in favour of Sherbahadur Singh @ Tule Singh. She further admitted that her father-in-law Ratan Singh died on 06.01.1981 and her husband Tulsi Singh died in the year 1987, however she denied that after death of Ratan Singh, they got the will deed (Ex.P-16) executed impersonating Ratan Singh. 16. The plaintiff has based her claim upon the Will marked as Exhibit P-16, which is stated to have been executed by Ratan Singh in favour of his only son, Tulsi Singh, who is the husband of the plaintiff. By the said 11 Will (Ex.P-16), Ratan Singh is stated to have revoked and cancelled his earlier Will dated 16.05.1980. In view of the fact that plaintiff seeks to derive her rights through the said document, the burden of proving the due execution, attestation, and validity of the Will (Ex.P-16) is upon her, in accordance with the settled principles of law governing proof of testamentary instruments. 17. To discharge this burden, plaintiff is required to prove the said document (Will), in terms of Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, that the Will (Ex.P-16) was duly executed by Ratan Singh during his lifetime in a sound and disposing state of mind, and that it was attested by at least two witnesses in his presence and in the presence of each other they put their signature or thumb. Only upon satisfactory proof of these essential elements the Will (Ex.P-16) can be accepted as genuine and valid in the eyes of law. 18. Section 63 of the Act of 1925 and Section 68 of the Evidence Act spell out the essential requirements of wills, and their proof, in a court of law. Relevant portion of Section 63 of the Act reads as under:- "63.Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition nor 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) - (b) * * * (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 12 direction of the testator, or has received from the testator a Test Case 30/1989 Page 14 personal acknowledgment of his signature or mark, or of 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 of attestation shall be necessary." 19. Section 68 of the Evidence Act reads thus: "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:..." 20. A bare reading of Section 63 (c) of the Act of 1925 makes it clear that the Will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the Will. There is a further requirement that the witnesses have to sign the Will in presence of the testator. Section 68 of the Evidence Act states that such a document cannot be used as evidence till at least one attesting witness is called for the purpose of proving its execution, (if there such an attesting witness is alive), and subject to the process of the court and capable of giving evidence. Such witness has to be examined. before the document can be used in an evidence. A combined reading of Section 63 of the Act of 1925 with Section 68 of the Evidence Act, reveals that the propounder of a will has to prove that the will was duly and validly executed. That can be done by not merely proving the 13 testator's signature on the will, but also establishing that attestations were made properly as required by Section 63 (c) of the Act of 1925. 21. If the facts of the case are examined in the light of Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, it is apparent that the Will marked as Exhibit P-16, purportedly executed by Ratan Singh on 16.01.1981 revoking his earlier Will dated 16.05.1980. The attesting witnesses to the said Will are Telesfor and Mangaluram and scribe of Will is Mansai Ram. However, the plaintiff has failed to examine either of these witnesses before the Court to prove the due execution and attestation of the Will (Ex.P-16). Plaintiff has also failed to examine Mansai Ram, scribe of the Will (Ex.P-16), before the Court to prove that the said Will was drafted by him or executed in his presence. In absence of such evidence, the alleged Will (Ex.P-16) cannot be said to have been duly executed, and the burden cast upon the plaintiff to prove the genuineness and validity of the Will remains unfulfilled, rendering the document legally doubtful and incapable of conferring any right or title in her favour. On the contrary, Saheb Ram, the Sub-Registrar, who has been examined on behalf of the plaintiff as (P.W.-4) to prove the certification of execution of said Will, stated in his evidence during cross-examination that the signature of the testator, Ratan Singh, appearing on the Will dated 16.01.1981 (Ex.P-16) differs from the signature of the same testator on the earlier Will dated 19.05.1980 (Ex.D-10). This witness further deposed that the difference between the two signatures is apparent to the naked eye. 14 22. Apart from above, plaintiff in her evidence herself has admitted, in paragraph 15 of her deposition, that Ratan Singh died on 06.01.1981 and date of death of Ratan Singh is also supported by the original death certificate (Ex.D-5) and witnesses examined on behalf of defendants. The alleged Will dated 16.01.1981 (Ex.P-16), relied upon by the plaintiff, bears a signature of Ratan Singh which is materially different from his signature on the earlier Will dated 19.05.1980 (Ex.D- 10), indicating that the said Will was executed impersonating Ratan Singh after his death. Consequently, the authenticity and validity of Ex.P-16 are highly doubtful. 23. Since the plaintiff failed to establish that Tulsi Singh, the husband of the plaintiff, acquired exclusive ownership of the disputed property by virtue of Ex.P-16. In the absence of such proof, the subsequent Will dated 15.04.1987 (Ex.P-17), executed by Tulsi Singh in favour of the plaintiff/appellant Rukmani, also fails to demonstrate a valid transfer of the entire disputed property to her. 24. Further, the plaintiff, both in her pleading and in her oral evidence, has specifically admitted the execution of Will dated 19.05.1980 (Ex. D- 10), by her father-in-law, Ratan Singh, in favour of her husband, Tulsi Singh and Tule singh. It is a well-settled principle of law that facts which are specifically admitted by the parties do not require further proof. 25. The learned First Appellate Court, after evaluating the documentary and oral evidence presented by both parties, concluded that the plaintiff is entitled to ownership of a one-half share of the suit land jointly with the defendants. The plaintiff’s claim for sole ownership of 15 the suit land was not established. Accordingly, the suit was partly allowed. The findings of the learned Appellate Court are based on proper appreciation of both documentary and oral evidence available on record and do not warrant any interference. Accordingly, both the substantial questions of law are decided in negative. 26. For the foregoing discussions, the appeal fails and it is accordingly dismissed. 27. Decree be drawn accordingly. Sd/- (Parth Prateem Sahu) Judge Balram