1 2025:CGHC:55236 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 225 of 2016 1 - Hemant Kumar Koshe S/o Devendra Kumar, Aged About 22 Years R/o Village- Uparwah Karela, Tahsil And District- Rajnandgaon, Chhattisgarh ...............Plaintiff, Chhattisgarh ... appellant (s) versus 1 - Geeta Bai Andors. W/o Late Moti Lal, Aged About 44 Years R/o Harinagar, Katulbod, Durg, Tahsil And District- Durg, Chhattisgarh, Cultivator Of Village Karelapara, Uparwah, District- Rajnandgaon, Chhattisgarh, Chhattisgarh 2 - Ku. Rameshwari Koshe D/o Late Moti Lal Koshe, Aged About 25 Years R/o Harinagar, Katulbod, Durg, Tahsil And District- Durg, Chhattisgarh, Cultivator Of Village Karelapara, Uparwah, District- Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh 3 - Ku. Lata Koshe D/o Late Moti Lal Koshe, Aged About 23 Years R/o Harinagar, Katulbod, Durg, Tahsil And District- Durg, Chhattisgarh, Cultivator Of Village Karelapara, Uparwah, District- Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh 4 - Ku. Asha Koshe D/o Late Moti Lal Koshe, Aged About 22 Years R/o Harinagar, Katulbod, Durg, Tahsil And District- Durg, Chhattisgarh, Cultivator Of Village Karelapara, Uparwah, District- Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh 5 - Devendra Kumar Koshe S/o Late Shadiram Koshe, Aged About 40 Years R/o Village- Uparwah Karela, Tahsil And District- Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh 6 - Mahendra Koshe S/o Late Shadiram Koshe, Aged About 40 Years R/o Village- Uparwah Karela, Tahsil And District- Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh 7 - Smt. Shimla Bai Koshe (Died And Deleted) As Per Honble Court Order Dated SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.01.06 10:46:09 +0530 2 16-07-2025. 8 - Basanti Bai D/o Late Shadiram Koshe, Aged About 35 Years R/o Chikhli, Post Jevra Sirsa, Tahsil And District- Durg, Chhattisgarh, District : Durg, Chhattisgarh 9 - State Of Chhattisgarh, Through The Collector, Rajnandgaon, District- Rajnandgaon, Chhattisgarh .............Defendants, District : Rajnandgaon, Chhattisgarh ... Respondent(s) For appellant (s) : Mr. Rahul Mishra, Advocate For Respondent No. 1 to 4 For State : Mr. Rakesh Thakur, Advocate Mr. Tarkeshwar Nande, Panel Lawyer Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 12.11.2025 1. The second appeal has been filed under Section 100 of the Code of Civil Procedure, 1908, by the plaintiff against the impugned judgment and decree dated 15/09/2015 passed by learned District Judge, Rajnandgaon, in Civil Appeal No. 31-A/2012 whereby the first appeal filed by the defendants No. 1 to 4 is allowed and the judgment and decree dated 15.10.2012 passed by learned Second Civil Judge, Class-I, Rajnandgaon, in Civil Suit No. 34-A/2012 is set aside and suit of the plaintiff is dismissed. 2. The plaintiff has filed the suit for declaration of title and permanent injunction over the suit land, total area- 2.78 Acre of three different khasra numbers situated at Village- Uperwaha, P.H. No. 9, R.I. Circle Ghumka, Tahsil and District- Rajnandgaon, on the basis of a will dated 01.12.2006 executed by Shadi Ram in his favour. 3. The undisputed facts of the case are that late Shadi Ram was owner and possession holder of the suit land. He died on 05.12.2006. The 3 defendant No. 7 is the wife of late Shadi Ram. He was having 3 sons and 1 daughter and out of three sons, one son Moti Lal has died and the defendants No. 1 to 4 are the legal heir of Moti Lal. After death of Shadi Ram, the defendants No. 1 to 4 have filed an application for mutation before the Tahsildar, Ghumka and the application was allowed and the land is recorded in the names of defendants No. 1 to 8. 4. The plaintiff has filed the suit with the pleadings that late Shadi Ram was taking care by plaintiff. The suit land was purchased by late Shadi Ram from his own income and it was his self acquired property. By satisfying with the care taken by the plaintiff, he executed a registered will on 01.12.2006 in favour of the plaintiff with respect to the suit lands and thereafter, he died on 05.12.2006. After his death, the plaintiff become the owner and title holder of the suit lands. In the application filed by the defendants No. 1 to 4 before Nayab Tahsildar, Ghumka, for mutation of their names of the revenue records, the plaintiff raised objection and claimed his mutation on the basis of the said will deed dated 01.12.2006, but the Nayab Tahsildar, Ghumka, allowed the application of defendants No. 1 to 4 vide order dated 07.03.2008 and directed to get a declaration about validity of will from the competent Court and thus, the Civil Suit has been filed. 5. The defendants No. 1 to 4 contested the claim of the plaintiff and filed their written statement, denied the plaint averment and pleaded that the suit lands are the ancestral property of defendants No. 1 to 4 which was obtained by Shadi Ram from his father and from the income of his ancestral property, he purchased 50 decimil of land. He has never executed any will during his life time and the said will deed dated 4 01.12.2006 is a forged and fabricated document. Before his death, Shadi Ram was suffering from Paralysis and was not mentally and physically sound and before his death, he was admitted at Chandu Lal Chandrakar Hospital. During his life time, he was making his signature over the deeds whereas in the said will, a thumb impression of the Shadi Ram is said to have been fixed, therefore, the said will is prima facie forged and the plaintiff is not entitled for any relief. 6. The defendants No. 5 to 8 have also filed their written statement and supported the claim of the plaintiff. 7. Based on the pleadings of the parties, the learned trial Court has framed issues and proceeded for recording of the evidence of the parties. 8. In support of the claim, the plaintiff has examined himself as PW/1, Mahendra Kumar Kose as PW/2, Devendra Kumar as PW/3 and government witness No. 1 Prakash Soni and another government witness No. 1 Bharti Sharma and has relied upon the documents (Ex- P/1) which is will-deed dated 01.12.2006, mutation order dated 07.03.2008 (Ex-P/2), revenue map (Ex-P/3), B-1 Kishtbandi (Ex-P/4), Khasrapanchshala (Ex-P/5). The defendants have examined Geeta Bai Kose as (DW/1), Devadas as (DW/2) and relied upon the documents revenue map (Ex-D/1), B-1 & Khasrapanchsala as (Ex-D/2, D/3 and D/4), renumbering slips (Ex-D/5), Adhikar Abhilekh of the year 1960-61 (Ex-D/6), Kabuliyatnama (Ex-D/7), Checkbandi and Jamabandi (Ex-D/8), Adhikar Abhilekh of the year 1975-76 (Ex-D/9), Kistbandi and Khasrapanchsala (Ex-D/10 and D/11). 9. After appreciation of oral as well as documentary evidence led by the 5 parties, the learned trial Court decreed the suit of the plaintiff holding that late Shadi Ram has executed a will dated 01.12.2006 in favour of the plaintiff which has been proved by examining its attesting witnesses and the plaintiff is having exclusive right and title over the suit lands. 10. The judgment and decree passed by learned trial Court was challenged by the dependents No. 1 to 4 before the learned first appellate Court and the learned first appellate Court after hearing the parties, allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit holding that the plaintiff has failed to prove that the suit property is the self acquired property of late Shadi Ram and he was competent to execute the will in favour of defendant No. 1, at the time to execution of alleged will, late Shadi Ram was mentally and physically not sound and he was admitted in hospital and the attesting witnesses are the sons of the plaintiff in whose favour the will was alleged to have been executed. The suspicious circumstances in execution of alleged will could not be removed by the plaintiff in his evidence and the due execution of the registered will is not proved and the plaintiff is not the exclusive title and possession holder of the suit property, hence this second appeal by the plaintiff. 11. Learned counsel appearing for the appellant would submit that there is no bar to execute a will by the owner of the property in favour of anyone upon whom he has his trust. Considering the care taken by the plaintiff, late Shadi Ram executed the will in his favour and has bequeathed his property by the will dated 01.12.2006. The execution of the said will has duly been proved by its attesting witnesses PW/2 and PW/3. The learned trial Court has rightly considered the evidence of 6 the parties and hold that the will has been proved in accordance with law and all the suspicious circumstances raised by the defendants in execution of the will has been duly explained by the plaintiff in his evidence, though, he was not of sound physical condition and died after a few days of execution of will but that itself could not be a suspicious circumstance to raise a doubt upon due execution of will. The mandatory requirement as provided under Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 has been fulfilled by the plaintiff to prove the execution of will by late Shadi Ram. Without considering the true aspect of the evidence, the learned first appellate Court has set aside the well reasoned judgment of learned trial Court holding that the plaintiff’s evidence is not sufficient to prove the due execution of will and he has not removed all the suspicious circumstances as required by law. Therefore, there is sufficient substantial question of law involved in the present appeal for its determination with respect to the execution of will and the mode of prove thereof. 12. I have heard learned counsel for the appellant and perused the record of the trial Court. 13. The case of the plaintiff is based on the alleged will-deed dated 01.12.2006 which has allegedly executed by late Shadi Ram. The said will deed dated 01.12.2006 is a registered will and the true attesting witnesses PW/2 Mahendra Kumar Kose and PW/3 Devendra Kumar Kose are being examined as its attesting witnesses. These two witnesses PW/2 and PW/3 are the sons of the plaintiff in whose favour the will is alleged to have been executed by late Shadi Ram. The 7 requirement to prove the will is provided under Section 63 of the Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872. 14. As per the provisions of Section 63 of the Succession Act, 1925 for due execution of a will (1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should that it was intended thereby to give effect to the writing as a will; (3) the will should be attested by two or more witnesses; and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator. 15. The above-stated provision of attestation of will under Section 63(c) of the Indian Succession Act, 1925 by two or more witnesses has been held to be mandatory by Their Lordships of the Supreme Court in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam 1 . 16. Section 68 of the Evidence Act, 1872 provides as under:- “68. Proof of execution of document law to be be used as required by law to be attested.- If a document attested, is required by it shall not 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 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." 17. By the aforesaid provision, a document required by law to be attested to have its execution proved by at least one of the attesting witnesses if 1 (2003) 2 SCC 91 8 alive and it is subject to process of the court conducting the proceedings involved and is capable of giving evidence. However, proviso to Section 68 of the Evidence Act, 1872 is not available in case of will. 18. In the matter of Giria Datt Singh v. Gangotri Datt Singh 2 , Their Lordships of the Supreme Court have held that in order to prove the due attestation of will, the propounder of will has to prove that 'A' and 'B', the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator. Their Lordships while considering Section 68 of the Evidence Act, 1872 further held that from the mere signature of two persons appearing at the foot of the endorsement of registration of will it cannot be presumed that they had appended their signature to the document as an attesting witness or can be construed to have done so in their capacity as attesting witness. It was pertinently observed as under:- "In order to prove the due attestation of the will Ex. A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same presence of the deceased. in the The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended hia signature to the will in the presence They have been of the deceased. demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A-23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves." ******* "One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of 2 AIR 1955 SC 346 9 the endorsement of registration that they had appended their signatures to the document attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an witness to be called as a witness to attesting prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated attesting witnesses. This line as of argument therefore cannot help Gangotri." 19. In the matter of H. Venkatchala Iyengar v. B. N. Thimmajamma and others 3 ' the Supreme Court speaking through Gajendragadkar, J., elaborately laid down the principles relating to the nature and standard of evidence required to prove a will. It was held as under:- "(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, an required by Section 63 of the Evidence Act, 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. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for the deposing as to circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the document the whether question propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. (4) will Cases in which the execution of the on by a suspicious different a feeble is surrounded circumstances stand footing. A shaky signature, mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he 3 AIR 1959 SC 443 10 receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the the will bears that the propounder signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons The presence of for excluding them. maken the circumstances auspicious initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the auspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. (5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn and reason of by question suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove matter." all reasonable doubts in the 20. The principle laid down in the above-stated judgment has been followed with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others 4 , Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another 5 ', Yumnam Ongbi Tampha Ibema Devi v. Yumnam 4 (1977) 1 SCC 369 5 (1974) 2 SCC 600 11 Joykumar Singh and others 6 " and Jagdish Chandra Sharma (supra). 21. In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another 7 ", the Supreme Court has again reiterated the need of proving the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872. 22. In Surendra Pal (supra), the Supreme Court while re-stating the guidelines regarding the nature and extent of burden of proof on the propounder of a will held that propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of the dispositions; that he put his signature to the testament of his own free will; and that he has signed it in the presence of the witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. It was further held that in cases where the propounder has himself taken a prominent part in execution of a will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. 23. In Janki Narayan Bhoir (supra), the Supreme Court while considering Section 63 (c) of Succession Act, 1925 and Section 68 of the Evidence Act. 1872 held that mere proof of signature of the testator on the will 6 (2009) 4 SCC 780 7 (2017) 1 SCC 257 12 was not sufficient, the attestation thereof is also to be proved as required by Section 63(c) of the Act Succession Act, 1925. It was observed as under “10. Section 68 of the Evidence Act speaks of an to now a document required by law to be attested can be proved. According the said section, 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 and to the of be On witness alive, subject process of the Court and capable giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to attested can be used in an evidence. a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63 although Section 63 the Succession requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence 21 Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 But what is of the Succession Act. significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of attestation by two the manner witnesses in Section 63, viz., attesting contemplated therein, the examination of other 13 attesting witness can be dispensed witness The attesting with. examined, in his evidence has to satisfy one to the attention of a will by him and the other attesting witness in order prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator and proof but of it means all the fulfilling formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirement of Section 68 of the Evidence Act.” 24. Reverting to the facts of the present case in light of the principles of law laid down by the Hon’ble Supreme Court in the above judgments qua execution and attestation of will by a testator, the fact remains for consideration that the will was executed by late Shadi Ram in favour of the plaintiff on 01.12.2006 and it has been attested by two witnesses PW/2 Mahendra Kumar Kose and PW/3 Devendra Kumar Kose. 25. PW/2, Mahendra Kumar Kose has stated in examination of chief that Shadi Ram was physically very weak and when he shown his willingness to execute a will, they took him to Rajnandgaon and since, due to his weakness, he could not signed the will and put his thumb impression over the will and thereafter, he and Devendra Kumar signed the will as its witness. Para-4 of his examination in chief is reiterated hereinbelow which is as under:- “;g fd] lknhjke dksls ‘kkfjjhd :i ls detksj gksus ds dkj.k olh;r ukek esa gLrk{kj ugh dj ik jgs FksA rks mi&iath; egksn;] jktukanxkao ds dgus ij vaxaBk dk 14 fu’kku yxok;k x;k FkkA mlds ckn eS rFkk egsUnz dqekj dksls ds }kjk crkSj xokg viuk gLRkk{kj fd;s FksA” In cross-examination, he admitted that he is son the plaintiff and defendant No. 5 in the case. He also admitted that he and his brother Devendra Kumar came to draft the present suit. He further stated that due to his ailment, Shadi Ram was admitted in the hospital for about 15 days. He reiterated that Shadi Ram was physically very weak, therefore, he put his thumb impression in the deed. He and his brother took him by Tempo to execute the will and he and his brother get the will deed prepare by document rider. 26. Similar is the evidence of PW/3 Devendra Kumar Kose that they took Shadi Ram to Rajnandgaon for execution of will and he and his brother Mahendra Kumar Kose signed the will as the witnesses. 27. From the evidence of these two witnesses, PW/2 and PW/3, the requirement to prove the will as has been laid down by the Hon’ble Supreme Court in the case of Janki Narayan Bhoir (supra), Jagdish Chandra Sharma (supra), Yumnam Ongbi Tampha Ibema Devi (supra) are completely missing. Further these two attesting witnesses are son of the plaintiff who is the propounder of the will and having substantial interest over the suit property and as per their evidence, they themselves took the testator to Rajnandgaon to execute the will and got prepared the draft of will from the document rider. When the attesting witnesses have the substantial interest over the suit property, they cannot be considered to be the attesting witnesses as has been held by Hon’ble Supreme Court in the case of Kumar Harish Chandra Singh Dev & Ors vs Bansidha r Mohanti & Ors , reported in AIR 1965 SC 1738. Further, the registration of alleged will does not diluted the 15 burden to prove of due execution of will as has been laid down by the Hon’ble Supreme Court in the matter of 2025 (4) SCC 289 “Leela & Others Vs. Muruganantham & Others”. 28. From the entire evidence led by the parties, this Court is also of the considered view that the plaintiff has failed to prove the due execution of the will deed dated 01.12.2006 by late Shadi Ram and has failed to remove all the suspicious circumstances in execution of the alleged will. The attesting witnesses are his sons and grand son of the testator who is having substantial interest and taken active part in execution of will, therefore, they cannot considered to be the attesting witnesses and therefore, the learned first appellate Court has rightly considered the evidence of the parties available on record and set aside the impugned judgment and decree passed by learned trial Court and dismissed the suit. 29. I do not find any perversity or illegality in the impugned judgment and decree and there is no question of law much less substantial question of law involved in the appeal for its determination. 30. Accordingly, the second appeal is dismissed without noticing to the other side. 31. Parties shall bear their own costs. Sd/- (Ravindra Kumar Agrawal) Judge sagrika