1 2025:CGHC:51096 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 479 of 2004 1 - (Deleted ) Kondi Bai Suryavanshi (Died Through Lrs) As Per Honble Court Order Dated 28-02-2025 1.1 - Raj Manharan Lal S/o Sukhiram @ Surit Ram Suryavanshi Aged About 61 Years R/o Village Gatouri Parsada (Jayram Nagar) Bilaspur Tahsil And District - Bilaspur (C.G.) 1.2 - Chandrika Bai W/o Late Mahabali Suryavanshi Aged About 56 Years R/o Village Gatouri Parsada (Jayram Nagar) Bilaspur Tahsil And District - Bilaspur (C.G.) ... Appellant(s) versus 1 - Ishwar Suryavanshi (Died Through Legal Heirs) As Per Honble Court Order Dated. 14/07/2025. 1.1 - 1. A. Sahodra Bai W/o Late Ishwar Suryawanshi Aged About 50 Years R/o- Village- Seepat, Tahsil Masturi, District - Bilaspur, Chhattisgarh. 1.2 - 1b. Ramavtar Suryawanshi W/o Late Ishwar Suryawanshi Aged About 32 Years R/o- Village- Seepat, Tahsil Masturi, District - Bilaspur, Chhattisgarh. 1.3 - 1.C - Sarita Bai W/o Late Dashrath Suryawanshi Aged About 32 Years ( Late Dashrath Suryawanshi S/o - Late Ishwar Suryawanshi), R/o- Village- Seepat, Tahsil Masturi, District - Bilaspur, Chhattisgarh. 1.4 - 1.D - Jamuna Bai W/o - Late Dashrath Suryawanshi Aged About 30 Years (Late Dashrath Suryawanshi S/o - Late Ishwar Suryawanshi) R/o- Village- Seepat, Tahsil Masturi, District - Bilaspur, Chhattisgarh. 2 - State Of Chhattisgarh Through Collector, Bilaspur, Chhattisgarh. ... Respondent(s) For Appellants : Mr. Sourabh Sharma, Advocate along with Ms. Harneet Kaur, Advocate For Respondent No. 2/ State : Mr. Trevenee Shankar Sahu, P.L. Digitally signed by AJINKYA PANSARE Date: 2025.10.17 14:18:50 +0530 2 Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 13/10/2025 1) The appellants/ LRs of defendant no. 1 have filed this second appeal under Section 100 of CPC assailing the judgment and decree passed by the learned First Additional District Judge, Bilaspur in Civil Appeal No. 45-A/2003 dated 17.4.2004, whereby the learned first appellate Court has allowed the first appeal preferred by the plaintiff and decreed the suit. 2) This appeal was admitted for hearing on following substantial questions of law vide order dated 22.12.2004 :- (1) Whether the lower appellate Court committed an error of law in holding that the execution of Will deed dated 27.7.1992 (Ex.P.4) was duly proved by the plaintiff ? (2) Whether the lower appellate Court committed an error of law by drawing a presumption of regularity in attestation on the basis of registration of Will ? 3) Facts of the case in a nutshell are that a suit was filed by the original plaintiff for declaration of title and permanent injunction pertaining to land bearing Khasra No. 1108 and 661/02 ad-measuring 0.80 acre situated at Village Seepat, Tehsil Masturi, District Bilaspur (C.G.) inter alia on the ground that the suit property was purchased by Late Jhunabai W/o Narrotam through two separate registered sale-deeds dated 26.7.1969. It was pleaded that Late Jhunabhai died issue less and before death she executed a registered will-deed in favor of the plaintiff, namely, Ishwar Suryawanshi on 27.2.1992 in presence of witnesses. It was further pleaded that Jhunabai died in month of March, 2001 and thereafter, application was moved by plaintiff for mutation of suit property, which was allowed by the concerned Additional Tehsildar 3 vide order dated 22.5.2001. It was also pleaded that defendant No. 1 tried to interfere with his peaceful possession and therefore plaintiff sought relief of permanent injunction too. 4) Defendant No. 1 filed written statement and denied plaint averments. She pleaded that first wife of Narrotam was Phul Bai and defendant No. 1 was their daughter. She further pleaded that after death of Phul Bai, Narrotam performed “churi marriage” with Jhunabai, who sold the property belonging to her husband and purchased two properties through registered sale-deeds. Defendant No. 1 also pleaded that no will-deed was executed in favor of plaintiff by late Jhunabai and document Ex.P/4 is forged and fabricated. 5) Learned trial Court framed issues; parties led oral and documentary evidence. Learned trial Court while dealing with issue No. 3 with regard to due execution of will-deed held that only one attesting witness – Bisahu Ram (PW/2) has been examined to prove due execution of will- deed (Ex.P/4). Learned trial Court further held that on instance of Late Jhuna Bai, will deed was typed, whereas she was an illiterate person, therefore there was no occasion for her to dictate the will-deed. The learned Trial Court found execution of will-deed suspicious. Learned trial Court also considered that there is no description of the property in the will-deed and the revenue documents were in possession of Bisahu Ram (PW/2). Learned trial Court opined that there was no involvement of plaintiff at the time of execution of will-deed. Learned trial Court also held that PW/1 and PW/2 have deposed with regard to adoption of plaintiff by late Jhunabai but there is no averments with regard to adoption in the will-deed (Ex.P/4). Learned trial Court dismissed the 4 suit filed by the plaintiff vide judgment and decree dated 30.9.2003. Subsequently, plaintiff preferred first appeal which was allowed by the learned First Appellate Court vide judgment dated 17.4.2004. 6) Learned counsel for the appellants/ Lrs of defendant No. 1 submits that the plaintiff has claimed right over the suit property on the basis of registered will-deed (Ex. P/4). He further submits that according to the Section 68 of the Indian Evidence Act, 1872 [hereinafter to be referred as “the Act of 1872”] and Section 63 of the Indian Succession Act, 1925 [hereinafter to be referred as “the Act of 1925”], due execution of will- deed has to be proved by examining at least one attesting witness. He contends that first of all, the testator has to affix his/her signature or thumb impression; thereafter witnesses have to put their signature or thumb impression and witnesses must categorically prove the fact that will-deed was read over to the testator and thereafter, testator put his/her signature or thumb impression in presence of witnesses; then, witnesses put their signature or thumb impression. He further contends that admittedly, Late. Jhunabai was an illiterate lady, therefore she could not have dictated the will-deed whereas attesting witness Bisahu Ram in his evidence has categorically stated that the revenue documents were in his possession and the will-deed was reduced into writing on instance of Late Jhunabai, which makes the document suspicious. He argues that description of the property is also not given in the will-deed, therefore learned First Appellate Court committed an error of law in decreeing the suit. He has placed reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Meena Pradhan Versus Kamla Pradhan1 wherein it is held that it has to be proved that (a) the testator signed the Will, out of his own free will, 5 (b) at the time of execution he or she had sound state of mind, (c) he/ she was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances. He prays to set aside the judgment and decree passed by the learned First Appellate Court. 7) Learned State counsel supports the judgment and decree passed by the learned First Appellate Court. 8) Heard learned Advocates for the parties and perused the record. 9) Admittedly, the suit property was purchased by Late Jhunabai and this fact is evident from perusal of registered sale-deed dated 26.7.1969 (Ex.P/1). Late Jhunabai was the second wife of Narrotam; she died issue less. Defendant No. 1 namely Kondi Bai is the daughter born out of the wedlock between Narrotam and Phul Bai [first wife of Narrotam]. The suit property was recorded in the name of Late Jhunabai. The Plaintiff is nephew of Late Jhunabai and as per plaint averments, plaintiff was taking care of late Jhunabai during her lifetime. It is pleaded that a registered will-deed was executed by late Jhunabai in favor of plaintiff on 27.2.1992 in presence of attesting witnesses – Bisahu Ram [PW/2] and Kirtanlal. Late Jhunabai died in March, 2001 and thereafter, application was moved by the plaintiff for mutation of the property before Additional Tehsildar, which was allowed vide order dated 22.5.2001 and thereafter, suit was filed by the plaintiff. 10) The Learned Trial Court found the will-deed not proved, whereas the learned First Appellate Court found it valid on the ground that it had been proved in accordance with the law and there would be a presumption of regularity in attestation on the basis of its registration. The contents of the registered will-deed (Ex. P/4) would show that it 6 was executed by Late Jhunabai on 27.2.1992 in favor of the plaintiff in the presence of attesting witnesses – Bisahu Ram and Kirtanlal. It is stated in the will-deed that “ I have become old and remain physically unfit. I have no issue and movable and immovable properties are recorded in my name in the revenue records. I am executing this will- deed in favor of my nephew, Ishwar, with the condition that the property will remain in my name and possession during my lifetime and after my death, Ishwar will get over it. The willed-out property is my self- acquired property and at present I am staying along with my nephew, who is taking care of me properly and, in the future, he will perform my last rites. After my death, the owner of my entire property would be Ishwar and no one else would have over it and any such claim would be futile. After my death, he would be at liberty to enter his name in the revenue records. ” 11) Ishwar (PW/1), the propounder of the will, has stated in an affidavit that the suit's property was recorded in the name of Late Jhunabai; she executed a registered will-deed in the presence of Bisahu Ram and Kirtanlal; after death of Late Jhunabai, he performed her last rites, and he is in possession of the property. He further stated that after the death of Late Jhunabai, he moved an application for mutation before Additional Tehsildar, but the objection was raised by defendant No. 1, which was turned down vide order dated 22.5.2001. In cross- examination, Ishwar admitted relation between Narrotam and Jhunabai, and he stated that Kondi Bai is the daughter of Narrotam and Phul Bai. In para–6 of cross-examination, he stated that a will-deed was executed by Late Jhunabai, who adopted him but denied the suggestion that the will-deed was actually an adoption deed. 7 12) Bisahu Ram (PW/2) was an attesting witness of the will-deed. In the affidavit, this witness has stated that a registered will-deed was executed by Late Jhunabai in the presence of two witnesses, himself and Kirtanlal. He has categorically stated that Late Jhunabai affixed her thumb impression over the will-deed and, thereafter, he and another witness put signature and, at the time of execution of the will-deed Late Jhunabai was aged about 70–75 years but was in a fit state of mind. On cross-examination, this witness stated that he did not read the will- deed, and he did not know the exact name of the husband of Late Jhunabai. This witness in para–3 stated that the will-deed was reduced into writing in the instance of Late Jhunabai, though she was illiterate. He asserted that Late Jhunabai put her thumb impression on the will- deed. In para–5, he admitted that revenue documents, including Stamp Paper and Rin Pustika, were provided by him to Late Jhunabai. In para–7, he stated that after the passing of an order by Additional Tehsildar, Kondi Bai started interfering with the peaceful possession of Ishwar. 13) Section 68 of The Act of 1872 reads as under :- 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 : 8 [Provided that it shall not 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.] 14) Section 63 of The Act of 1925 reads 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 acknowledgement 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 of attestation shall be necessary. 15) In the matter of Meena Pradhan (supra), Hon’ble Supreme Court in para-10 has discussed the principles required to prove the validity and due execution of the Will and same is reproduced herein below :- 10.Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: (AIR 1959 SC 443) (3-Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135: (AIROnline 1994 SC 629) (3Judge 9 Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91: (AIR 2003 SC 761)(2-Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 : (AIROnline 2009 SC 125) (3-Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277: (AIR 2020 SC 3102) (3Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will: i. 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; ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. iii. 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; iv. 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; v. 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; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; vii. 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 viii. 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. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious 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; x. One who alleges fraud, fabrication, undue influence etcetera 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. xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind'1. 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. 16) It would be profitable to examine the will deed in light of the judgment passed by the Hon'ble Supreme Court in the matter of Meena Pradhan (Supra). It is not in dispute that the will-deed was executed by its testator, and it was her last Will. The defendant, No. 1, could not prove the contrary. Bisahu Ram (PW/2), the attesting witness, has proved the required formalities contained in Section 63 of the Act of 1925 and also proved that the testator put her thumb impression on the will-deed in presence of two attesting witnesses including him and one Kirtanlal. This attesting witness saw the testator affix her thumb impression and the will-deed was signed by the attesting witnesses in the presence of its testator. According to Section 68 of the Act of 1872, one attesting 11 witness was examined by the plaintiff before the learned trial court. 17) The testator was in fit state of mind and no material has been placed on record by the defendant No. 1 before the learned Courts below to prove the contrary. The suspicious circumstances must be real, germane and valid’ and not merely the ‘the fantasy of the doubting mind’. Mr. Sharma has argued that Late Jhunabai was an illiterate lady and she was not in a position to dictate the will-deed and after completion of typing of will-deed, whether the same was read over to her or not, has not been disclosed in will-deed. Admittedly, it is a standard practice to record the evidence or type a document in the Court’s language and further it is not possible to type the document exactly in the language of testator or a witness. In the cross- examination of witnesses, no suggestion was given in this regard and no question was put by the defendant no. 1. Bisahu Ram, in evidence has stated that the will-deed was typed on the instance of Late Jhunabai and it was read over and thumb impression was put on the said document by testator and the witnesses. Further, the document is a registered document. The evidence adduced by the parties would also lead to a conclusion that the propounder himself did not take part in execution of will deed. 18) Taking into consideration the above-discussed facts and the law laid down by the Apex Court in the matter of Meena Pradhan (supra), the learned First Appellate Court rightly held that the will-deed (Ex. P/4) was executed validly, strictly in accordance with the provisions of Section 68 of the Act of 1872 and Section 63 of the Act of 1925. Thus, the substantial question of law No. 1 is decided in the negative against 12 the appellants herein. With regard to the substantial question of law No. 2, mere registration of a will-deed would not confer any right in favor of its propounder, and it has to be proved strictly in accordance with the provisions of Section 68 of the Act of 1872 and Section 63 of the Act of 1925. Accordingly, the substantial question of law No. 2 is answered. 19) In result, the instant second appeal stands dismissed. No order as to cost(s). A decree be drawn accordingly. Sd/- Rakesh Mohan Pandey JUDGE A j i n k y a