1 2025:CGHC:52862 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 31 of 2010 1 - Asharam S/o Late Sondhari Aged About 65 Years By Caste Kunbi, 2 - Chakrawarti Prasad S/o Asharam Aged About 35 Years By Caste Kunbi, 3 - Dhananjay Prasad S/o Asharam Aged About 33 Years By Caste Kunbi, 4 -Arun Kumar S/o Asharam Aged About 30 Years By Caste Kunbi, 5 - Bimla D/o Late Sondhari Aged About 57 Years W/o Bajilal, By Caste Kunbi, Appellants No. 1 to 4 are R/o village Sondiha, PS Ramkola, Appellant No.5 is R/o Village Goverdhanpur, All appellants of Tahsil Pratappur, District Surguja Chhattisgarh. ... Appellants versus 1 - Tulsiram (Died) Through His Legal Heirs- 1-(A) Biraspat Wd/o Tulsiram Aged About 65 Years 1-(B) Jainprasad S/o Tulsiram Aged About 45 Years 1-(C) Suresh Prasad S/o Tulsiram Aged About 42 Years 1-(D) Jugmaniya W/o Late Narad Prasad Patel, D/o Tulsiram,Aged About 47 Years The Respondent No.1A to 1C are the resident of village Sondiha, PS Ramkola, Tehsil Pratappur, District Surguja, Chhattisgarh. The Respondent No.1D is resident of Village Parasdiha, Jamaipara, Tehsil Wadraf Nagar. 2 - Amarpati D/o Late Sondhari Aged About 70 Years W/o Soti Prasad, By Caste Kunbi, R/o Village Dhondha, Police Station Ramkola, Tahsil Pratappur, District Surguja Chhattisgarh. 3 - State of Chhattisgarh Through Collector Surguja Ambikapur, Chhattisgarh. ... Respondent(s) For Appellants : Shri Sunil Tripathi, Advocate. For Respondents/ : Shri A.N. Bhakta and Shri Vivek Bhakta, Defendants Advocates. For State : Shri Ajay Kumrani, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 29.10.2025 1. The present Second Appeal under Section 100 of The Code of Civil Procedure, 1908 has been filed by the plaintiffs against the impugned INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.01.06 17:46:46 +0530 2 judgment and decree dated 18.11.2009 passed by Additional District Judge (FTC) Pratappur, District Surguja, in Civil Appeal No.24-A/2007 whereby the First Appeal filed by the appellants/plaintiffs have been partly allowed and the judgment and decree dated 29.03.2007 passed by Civil Judge, Class-II, Pratappur, in Civil Suit No.5-A/2003 has been partly set aside. 2. For the sake of convenience, the status of parties shown in the Civil Suit are being taken in the present Second Appeal. 3. On 19.07.2021, the appeal was admitted by the court for hearing on the following substantial question of law: “Whether the first appellate court was justified in holding that Sudharmania was not entitled to execute the Will dated 07.07.1992 (Ex.P/1) in favour of plaintiffs No.2 to 4 in respect of the property shown in Schedule-C appended with the plaint, by recording a finding which is perverse and contrary to the record?” 4. The plaintiffs filed a civil suit for declaration of title, permanent injunction over the suit property of Schedule-B&C annexed with the plaint, partition and separate possession of their half share of the remaining property of Schedule-A leaving the property shown in Schedule-C which is the part of Schedule-A property. The plaintiffs have pleaded in the plaint that the parties belong to Kunbi Caste and governed by Hindu Right and Rituals. The property of the father of plaintiff No.1&5 and defendants No.1&2 shown in Schedule-A annexed with the plaint, situated at village Sondiha, Tehsil Pratappur, District Surguja and the property of Schedule-B annexed with the plaint was owned by the mother of plaintiff No.1&5 and defendant No.1&2 namely Sudharmania situated at village Dhondha, Tehsil Pratappur District Surguja. The property shown in Schedule-C of plaint is the part of 3 property of Schedule-A of the plaint. The plaintiff No.2 to 4 are the sons of plaintiff No.1. Since the suit property of Schedule-B&C was obtained by plaintiff No.2 to 4 through the Will executed by Sudharmania, they are being impleaded in the suit as plaintiffs. It is also the pleading of plaintiffs that after death of Sondhari, his wife Sudharmania inherited the property of Schedule-A along with the plaintiff No.1 and defendant No.1 jointly. The plaintiff No.5 and defendant No.2 married during the lifetime of late Sondhari and they orally relinquished their right and title from the property of Schedule-A. The plaintiff No.5 and defendant No.2 ousted from the property since more than 35 years. Thus, the plaintiff No.1 and defendant No.1 are having 1/3rd share over the property of Schedule-A of the plaint along with their mother Sudharmania. After death of Sondhari, the plaintiff No.1, defendant No.1 and Sudharmania got partitioned the property in equal 1/3rd share and cultivating over the land of their share, but no formal partition took place between the parties. The suit property of Schedule-C which is the part of property of Schedule-A came in the share of Sudharmania and she executed a Will on 07.07.1992 in favour of plaintiffs No.2 to 4 and after death of Sudharmania their title accrued over the property of Schedule-C and came in possession of the same. The suit property of Schedule-B was inherited by Sudharmania from her father and she was sole title and possession holder of the said property and also bequeathed her property of Schedule-B to plaintiffs No.2 to 4 through the said Will dated 07.07.1992 and thus, the plaintiffs No.2 to 4 are title and possession holder of the property of Schedule-B&C and plaintiff No.1 4 and defendant No.1 are having equal half share over the remaining property of Schedule-A. 5. It is also pleaded that the plaintiffs No.2 to 4 had filed an application for mutation over the property of Schedule-B&C on the basis of Will which has been dismissed by the Assistant Settlement Officer, Pratappur vide order dated 17.06.1996. The appeal filed by the plaintiffs No.2 to 4 was also dismissed for want of prosecution on 09.02.1999 which came to their knowledge on 15.06.2000 and thereafter the present Civil Suit has been filed. 6. The defendant No.1 contested the claim of the plaintiffs and filed written statement, denied the plaint averment with the pleading that the property of Schedule-A of village Sondiha is the self acquired property of their common ancestor Mithai Kunbi. The property of Schedule-B is the ancestral property of Sudharmania who is the mother of plaintiffs No.1&5 and defendants No.1&2. Mithai Kunbi was having three sons namely Sondhari, Shiv Bahoran and Ram Bahoran and the property was already partitioned between these three brothers and they were settled in their possession. The suit property of Schedule-A was the property of Sondhari which was inherited by plaintiff No.1 and defendant No.1 because the plaintiff No.5 and defendant No.2 had already relinquished their right and title in favour of their brothers. The property of Schedule-B was also inherited by their mother Sudharmania in which the plaintiff No.1 and defendant No.1 have equal share and jointly cultivating the same. There was no partition of Schedule-A property between Sudharmania and her two sons. He also denied execution of Will on 07.07.1992 by Sudharmania on the ground 5 that at the time of execution of alleged Will her mental and physical condition was not sound and it was a forged Will. 7. The defendant No.1 has also filed his counter claim, claiming the relief that Will dated 07.07.1992 executed in favour of plaintiffs No.2 to 4 be declared as null and void and the plaintiff No.1 and defendant No.1 be declared as joint title holder of the suit property of Schedule-A,B&C, and also for partition of the property shown in Schedule-D&E annexed with the counter claim between the plaintiff No.1 and defendant No.1 in equal half share. The defendant No.1 pleaded in his counter claim that Schedule-A property was never partitioned and plaintiff No.1 and defendant No.1 were jointly cultivating the same and it is their ancestral property. The property of village Dhondha was obtained by their mother in succession in which also the plaintiff No.1 and defendant No.1 are jointly cultivating and are in joint possession. The plaintiff No.5 and defendant No.2 have relinquished their right and title in favour of plaintiff No.1 and defendant No.1 on 14.06.2000 before Gram Panchayat, Sondiha, and therefore, the plaintiff No.1 and defendant No.1 be declared as title holder of half share of the property and also for partition and separate possession. 8. The counter claim filed by the defendant No.1 was also contested by the plaintiffs and they filed their written statement to the counter claim in consonance with their plaint averment and pleaded that there was partition between the plaintiff No.1, defendant No.1 and Sudharmania of the property of Schedule-A and Sudharmania executed a Will in favour of plaintiffs No.2 to 4 on 07.07.1992 with respect to suit property of Schedule-B&C, and therefore, defendant No.1 had no cause of 6 action to file counter claim and as such the same is liable to be dismissed. 9. The defendant No.2 also filed his written statement and admitted the claim of the plaintiffs. 10. On the basis of pleadings of the parties, the trial court framed issues and proceeded for recording evidence of the parties. 11. The plaintiffs have examined PW-1 Asharam, PW-2 Bajilal S/o Shiv Dhani, PW-3 Bajilal S/o Shiv Bahoran and Smt. Bimla W/o of Bajilal has been examined as Court witness No.1 from plaintiff’s side. The plaintiffs relied upon document of Will dated 07.07.1992 Ex.P/1, the order sheet dated 09.02.1999 of the settlement Officer Surguja Ex.P/2, order dated 17.06.1996 passed by Assistant Settlement Officer Pratappur Ex.P/3, Adhikar Abhilekh Ex.P/4, B-1 Kistbandi Ex.P/5&P/6. The defendants have examined Tulsiram DW-1, Janki Ram DW-2, Ramdinesh Patel DW-3, Narad Prasad DW-4 and Smt. Amarpati has been examined as Court witness No.2 from defendant’s side. The defendants relied upon document Ex.D./1 which is the affidavit of Tulsiram under Order 18 Rule 4 of CPC, B-1 Kistbandi Ex.D/2 & D/3, Khasra Panchsala Ex.D/4,order dated 17.06.1996 of Assistant Settlement Officer Pratappur Ex.D/5, Mutation Register Ex.D/6, B-1 Kistbandi Ex.D/7, order dated 10.07.1990 to 14.05.1991 of Assistant Settlement Officer Pratappur Ex.D/8, Mutation application Ex.D/9, B-1 Kistbandi Ex.D/10, Surguja State Settlement Register Ex.D/11, renumbering list Ex.D/12 & 13, Khasra Panchsala Ex.D/14, B-1 Kistbandi Ex.D/15, Khasra Panchsala Ex.D/16, affidavit of Janki Ram 7 under Order 18 Rule 4 of CPC Ex.D/17 and the affidavit of Narad Prasad under Order 18 Rule 4 of CPC Ex.D/18. 12. The trial court after appreciating oral as well as documentary evidence led by the parties comes into conclusion that plaintiffs have failed to prove that the suit property of Schedule-B&C is the joint property of plaintiffs; they failed to prove that plaintiff No.1 is having half share over the property of Schedule-C and plaintiff No.1 and defendant No.1 are having joint title and possession over the suit property of Schedule-A & B; the plaintiff No.5 and defendant No.2 have relinquished their right and title from the property of Schedule-A, and they are entitled for partition of the entire property and dismissed the suit of plaintiffs and allowed the counter claim of defendant No.1. The judgment and decree dated 29.03.2007 passed by the trial court was challenged by the plaintiffs before the first appellate court which was partly allowed holding that plaintiffs No.2 to 4 are joint title and possession holder of the suit property of Schedule-B and plaintiff No.1 and defendant No.1 are joint title and possession holder of schedule-A property in equal proportion and they are entitled for partition of the same holding that Will executed by Sudharmania in favour of plaintiffs No.2 to 4 have been proved with respect to property of Schedule-B, which gives rise to present Second Appeal in which the substantial question of law has been framed by this court as set out in the preceding paragraph of this judgment. 13. Learned counsel appearing for the appellants/plaintiffs would submit that the first appellate court has held that the Will executed by Sudharmania in favour of plaintiffs No.2 to 4 has been found proved 8 and therefore the property of schedule-B of village Dhondha have been bequeathed in favour of plaintiffs No.2 to 4. When the Will is found proved, the property of Sudharmania should also be transferred to plaintiffs No.2 to 4 which has been given in Schedule-A of the plaint. Even if the trial court comes into conclusion that there was no partition between Sudharmania, plaintiff No.1 and defendant No.1 then also the Will executed by Sudharmania can be validated to the extent of share of Sudharmania. Although no specific land would be transferred by the Will, but the share of Sudharmania can be transferred through the Will and the propounder are entitled for partition of the property to that extent. Along with plaintiff No.1 and defendant No.1, Sudharmania was having 1/3rd share over the property of late Sondhari as two daughters of Sudharmania and Sondhari had relinquished their right and title from the property which has also been found proved by the first appellate court and therefore instead of granting decree with respect to suit property of Schedule-A, only a decree with respect to suit property of Schedule-B has been passed in favour of the plaintiffs No.2 to 4. He would further submit that as per Section 30 of the Hindu Succession Act, 1956 (in short, The Act, 1956), Sudharmania was competent to dispose of her property by Will for which she was capable. The respondents have filed cross objection under Order 41 Rule 22 of CPC on 26.08.2021 in the present Second Appeal, but the said cross objection has been dismissed as withdrawn vide order dated 07.10.2024. Therefore, the appeal may be allowed and the substantial question of law may be answered in favour of the plaintiffs/appellants. 9 14. On the other hand, learned counsel for the respondents/defendants opposes the submissions made by the counsel for the appellants/plaintiffs and submitted that after going through the evidence available on record, the first appellate court rightly comes into conclusion that the suit property of Schedule-A was not partitioned and Sudharmania was not competent to execute Will with respect to any property without there being any partition amongst them and therefore, the Will was found proved only with respect to property of Schedule-B of village Dhondha. He would also submit that the Will with respect to property of village Sondiha was not found proved and Sudharmania died, the plaintiff No.1 and defendant No.1 are the remaining legal heirs of late Sondhari who inherited the property of Schedule-A and therefore they are having equal share over the property of Schedule-A and entitled for partition, which has been rightly considered by the first appellate court and there is no illegality or perversity in the judgment and decree passed by the first appellate court and the appeal is liable to be dismissed. 15. I have heard the counsel appearing for the parties and perused the record of trial court as well as first appellate court. 16. It is not in dispute that the property of Schedule-A is the ancestral property of Sudharmania, plaintiff No.1 and defendant No.1. The plaintiffs could not file any document to show that the property shown in Will Deed, Ex.P/1 of village Sondiha was the exclusive property of Sudharmania. From the document Ex.P/4 & P/5 it transpires that the property of Schedule-A was recorded in the name of late Sondhari. Sudharmania is the wife of Sondhari. Plaintiff No.1 and defendant No.1 10 both are sons of late Sondhari. Two sisters were also there who are plaintiff No.5 and defendant No.2, however, they relinquished their right and title over the property though their names have been mutated in the revenue records uptill 2000. From the document Ex.D/2 to D/4, D/7, D/10, D/11,D/14 and D/16 it transpires that the suit property of Schedule-A of village Sondiha is the ancestral property of Sudharmania and there was no partition of the property. It was recorded jointly in the revenue records. In paragraph 22 of the judgment of first appellate court, the execution of Will by Sudharmania on 07.07.1992 Ex.P/1 has been found proved and there is no challenge by the defendants against that findings. The cross objection filed by the respondents/defendants have also been withdrawn on 07.10.2024 and even from the evidence of PW-2 Bajilal and DW-3 Ramdinesh Patel, the execution of Will by Sudharmania has been proved by which she bequeathed her property to plaintiffs No.2 to 4 and therefore the plaintiffs No.2 to 4 are entitled for property of Sudharmania to the extent of her share. 17. Section 30 of the Act, 1956 provides testamentary succession which reads as under: "30. Testamentary succession.- Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, (39 of 1925), or any other law for the time being in force and applicable to Hindus.” 18. In Narinder Singh Rao Vs. Air Vice Marshal Mahinder Singh Rao and Others, 2013(9)SCC 425, the Hon’ble Supreme Court has held in paragraph 10 as under : “10. Though the Will executed by Sumitra Devi has been treated as a validly executed Will, Sumitra Devi, who had only 1/9th of the right and 11 interest in the suit property, could not have bequeathed more than her interest in the suit property. If Sumitra Devi was not a full-fledged owner of the suit property, she could not have bequeathed the entire suit property to the present appellant- Narinder Singh Rao who has claimed the entire property by virtue of the Will executed by Sumitra Devi. At the most Sumitra Devi could have bequeathed her interest in the property which was to the extent of 1/9th share in the said property. So the High Court rightly came to the conclusion that the 1/9th share in the suit property belonging to Sumitra Devi would be inherited by the present appellant - Narinder Singh Rao by virtue of the Will executed by her. In addition to his own right and interest in the suit property to the extent of 1/9th share, which the present appellant had inherited from his father, the present appellant would get 1/9th share in the suit property as he also inherited share of his mother Sumitra Devi whereas all other children of Rao Gajraj Singh would get 1/9th share each in the suit property. Thus, the present appellant would be having 2/9th share in the suit property.” 19. In Jamunabai & Others Vs. Surendra Kumar & Others, AIR 1995 MP 274, it has been held by the Madhya Pradesh High Court in paragraph 20 & 21 as under : “20. It was next contended that the deceased under the law could not execute the Will in relation to the joint family property. Relying upon Section 30 of the Hindu Succession Act, 1956 it was contended by Shri N. K. Maheshwari that the objection deserves to be rejected. Section 30 of the Hindu Succession Act reads as under: "30. Testamentary succession.-- Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accor- dance with the provisions of the Indian Succession Act, 1925, (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.-- The interest of a male Hindu in a Mitak- shara coparcenary property or the interest of a member'of a Tarwad, Tavazhi, Illom, Kutumba or Kavaru shall, not- withstanding anything contained in this Act, or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Section." This matter clearly lays down that any Hindu may dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925. The Explanation clarify that the interest of a male Hindu in a Mitakshara coparcenary property shall be deemed to be property capable of being disposed of by him or by her within the meaning of this section, the Explanation clearly states that the interest of a male Hindu in Mitakshara coparcenary property shall notwithstanding anything contained in this Act (Hindu Succession Act) or any other law for the time being in force be deemed to be property capable of being disposed of by him or by her within the meaning of Section 30. Now if according to Section 30 and its Explanation the 12 interest in a Mitakshara coparcenary property is to be deemed to be property capable of being disposed of by him, then this objection that the Will in relation to the joint family property could not be executed has to be rejected. 21. The disability of a coparcener in disposing of his undivided interest in the property by Will or other testamentary document under the old Hindu Law is removed by Section 30. According to Section 4 any cus- tom inconsistent with any provision of this enactment is abrogated. In the expression "any other law for the time being in force", the 'law' will include any statutory law or textual law or customary law. It would, therefore, follow that if there was any prohibition under the old Hindu Law the same stands removed after coming into force of Section 30 of the Hindu Succession Act.” 20. In the present case Sudharmania had inherited the property along with plaintiff No.1 and defendant No.1 from late Sondhari with respect to suit property of Schedule-A of village Sondiha. The property of Sched- ule-A was not partitioned between them and Sudharmania inherited the property having equal share with plaintiff No.1 and defendant No.1. Since there was no claim by plaintiff No.5-Bimla and defendant No.2- Amarpati over the suit property as stated by the parties that they relin- quished their right from the property, further Smt. Bimla has been ex- amined as court witness No.1 from plaintiff’s side and Smt. Amarpati has been examined as court witness No.2 from defendant’s side and both of them have deposed that they did not want to take any share over the property and relinquished the same in favour of her brothers, therefore, the first appellate court has also found that they relinquished their share from the suit property. 21. After relinquishing the right by Smt. Bimla and Smt. Amarpati, only Sudharmania, plaintiff No.1-Asharam and defendant No.1-Tulsi Ram remained in the undivided property and all of them were having equal 1/3rd share over the property of Schedule-A which was their ancestral property inherited from late Sondhari. Sudharmania executed a Will 13 with respect to her property in favour of plaintiffs No.2 to 4 which has been found proved and therefore the plaintiffs No.2 to 4 are entitled for the property to the extent of share of Sudharmania from the property. The first appellate court has held that if there was no partition of the co- parcenary property, one coparcenar cannot dispose of their share by Will and such property was disposed of on the basis of survivership and not by succession after death of coparcenar, however, in view of the aforesaid judgments in case of Narinder Singh (Supra) and Ja- munabai (Supra) it is found that Sudharmania was capable to dispose of her share of property by testamentary dispossession which she did through Will dated 07.07.1992 executed in favour of plaintiffs No.2 to 4 and the property of Sudharmania is transferred in favour of plaintiff No.2 to 4 to the extent of her share of the suit property of Schedule-A annexed with the plaint. 22. 22. The plaintiff, PW-1, has admitted in his evidence that there were three sons of Mithai Kunbi namely Sondhari, Shiv Bahoran and Ram Baho- ran and he along with Tulsi, Amarpati, Bimla and Sudharmania are the legal heirs of Sondhari. His grandfather Mithai Kunbi was having 18.24 Acres of ancestral property at village Sondiha. His mother Sudharma- nia died on 16.08.1993 whereas his father Sondhari died on 20.09.1988. He did not state about earlier partition of the property be- tween his father and his Uncles. He admits that the land of village Sondiha is jointly recorded in the names of two brothers and they jointly cultivating the same. He also admits that the property of Sudhar- mania was partitioned in three shares and one share was given to his mother Sudharmania. There is no document with respect to partition of 14 the property and he did not tell as to which property fall in the share of each members of family. 23. The defendant No.1 Tulsiram have also stated in his evidence that there was no partition between him, his brother Asharam and their mother Sudharmania and they were jointly cultivating the lands of vil- lage Sondiha and after death of Sudharmania, he and Ashsram culti- vating their half share of property as per their convenience, but there is no formal partition of property between them. 24. From the documents as well as evidence led by the parties it clearly transpires that Sudharmania was coparcenar in the coparcenary prop- erty along with plaintiff No.1 and defendant No.1 and she executed a Will in favour of plaintiffs No.2 to 4 with respect to property of village Sondiha and due execution of Will has been found proved, however, she executed a Will from the property of Schedule-A which was undi- vided property; the first appellate court declined to grant relief to the plaintiffs with respect to Schedule-A property, however, this court finds that Sudharmania was competent and capable to dispose of her prop- erty by Will to the extent of her share of the coparcenary property and therefore the impugned judgment and decree passed by the trial court is erroneous to the extent that plaintiffs No.2 to 4 are entitled for decla- ration of their title over the property of Sudharmania to the extent of her share of Schedule-A property by virtue of Will executed by Sudharma- nia on 07.07.1992, and they are entitled for partition irrespective of the details of the properties mentioned in the said Will. 25. Accordingly, the substantial question of law is answered that the first appellate court was not justified in holding that Sudharmania was not 15 entitled to execute the Will dated 07.07.1992 in favour of plaintiffs No.2 to 4. However, with respect to declaration of Schedule-C property in favour of plaintiffs No.2 to 4, they are entitled for partition of 1/3rd share of the property which was the property of Sudharmania. 26. As a fallout and consequence of the above, the decree passed by the first appellate court in paragraph 2 to 4 are modified to the extent that the plaintiffs No.2 to 4 are joint title and possession holder of Schedule- A property along with plaintiff No.1 and defendant No.1 and plaintiffs No.2 to 4 are having 1/3rd share of Schedule-A property which was the share of Sudharmania and they are entitled for partition of Schedule-A property to the extent of share of Sudharmania in accordance with law. Decree with respect to other paragraphs shall remain intact. 27. The appeal is partly allowed to the extent indicated hereinabove. Par- ties shall bear their own costs. 28. An appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge inder