1 2025:CGHC:54736 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 26 of 2019 1 - Pyare Lal Gupta S/o Late Rambisal Gupta Aged About 76 Years R/o Shankar Ward Bhatapara, Tahsil- Bhatapara, District- Balodabazar- Bhatapara, Chhattisgarh. 2 - Anil Gupta S/o Pyare Lal Gupta Aged About 49 Years R/o Shankar Ward Bhatapara, Tahsil- Bhatapara, District- Balodabazar- Bhatapara, Chhattisgarh. --- Appellants versus 1 - Vikas Chand Gupta S/o Late Mahesh Prasad Gupta Aged About 40 Years R/o Shankar Ward Bhatapara, Tahsil- Bhatapara, District- Balodabazar- Bhatapara, Chhattisgarh. At Present R/o Balco Nagar, Qtr. No. 171/3/a, Balco Township, Korba, District- Korba, Chhattisgarh........Respondent/ Plaintiff No. 1 2 - Yogesh Chand Gupta S/o Late Mahesh Prasad Gupta Aged About 32 Years R/o Shankar Ward Bhatapara, Tahsil- Bhatapara, District- Balodabazar- Bhatapara, Chhattisgarh. At Present R/o Balco Nagar, Qtr. No. 171/3/a, Balco Township, Korba, District- Korba, Chhattisgarh....... Respondent/ Plaintiff No. 2 3 - Jivni @ Neha D/o Late Mahesh Prasad Gupta Aged About 30 Years R/o Shankar Ward Bhatapara, Tahsil- Bhatapara, District- Balodabazar- Bhatapara, Chhattisgarh. At Present R/o Balco Nagar, Qtr. No. 171/3/a, Balco Township, Korba, District- Korba, Chhattisgarh....... Respondent/ Plaintiff No. 3 4 - Smt. Saroj Gupta Wd/o Late Mahesh Prasad Gupta Aged About 57 Years R/o Shankar Ward Bhatapara, Tahsil- Bhatapara, District- Balodabazar- Bhatapara, Chhattisgarh. At Present R/o Balco Nagar, Qtr. No. 171/3/a, Balco Township, Korba, District- Korba, Chhattisgarh....... Respondent/ Plaintiff No.4 5 - State Of Chhattisgarh Through Collector, District- Balodabazar- Bhatapara, Chhattisgarh.... Respondent/ Defendant No.3 ... Respondents (Cause title taken from Case Information System) VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2026.01.13 15:10:38 +0530 2 For Appellants : Mr. Sandeep Patel, Advocate For Respondents No.1 to 3 : Mr. Hemant Gupta, Advocate For Respondent No.5/State : Mr. Aman Tamboli, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 10/11/2025 1. The present first appeal under Section 96 of the Code of Civil Procedure, 1908 has been filed by the defendants No.1 & 2 against the impugned judgment and decree dated 01.11.2018, passed by learned Additional District Judge, Bhatapara, District Baloda Bazar-Bhatapara, in Civil Suit No. 15-A/2014, whereby a decree for possession of the suit property is passed in favour of the plaintiffs. 2. For the sake of convenience, the status of the parties as shown in the civil suit is being referred to in the present appeal. 3. It is an admitted fact in the case that the father of the plaintiffs, namely, late Mahesh Prasad Gupta, was the real brother of defendant No.1. 4. The plaintiffs have filed a civil suit for vacant possession of the suit house of schedule-A annexed with the plaint situated at Shankar Ward, Station Road, Bhatapara, Nazul Sheet No. 12-D, Plot No.7, Khasra No. 44/1, area 122 sq.mtr. It is pleaded in the plaint that the grandfather of plaintiffs No. 1 to 3, father-in-law of plaintiff No.4 and father of defendant No.1, namely Rambisal Gupta, was having various movable and immovable properties and he executed a will on 24.08.2006. In the said will, the suit house consists of one shop, one room and a toilet on the ground floor, two rooms and a toilet on the first floor, was also 3 included. Rambisal Gupta died on 10.12.2011. The properties of late Rambisal Gupta were settled between the members of the family as per the will deed dated 24.08.2006, and are in possession of their respective parts of the property. The suit house was bequeathed in favour of the plaintiffs, and in para 5 of the said will deed dated 24.08.2006, the possession of the plaintiffs in the suit house is mentioned, and they are in possession of the same. After the death of Rambisal Gupta, the names of the plaintiffs have also been recorded in the municipal records vide order dated 18.03.2013 passed by the competent authority. The defendants were permitted to reside in the suit house for some time on a license given by the plaintiffs. When the defendants arranged the accommodation for their residence, the plaintiffs asked them to vacate the suit house and hand over its possession, but the defendants did not vacate the suit house. On 15.05.2014, the plaintiffs served a legal notice to the defendants, despite that they had not vacated the suit house. Therefore, the plaintiffs have filed the suit for vacant possession of the suit house. 5. The defendant No.1 contested the claim of the plaintiffs and filed his written statement, in which he denied the plaintiff’s averments and pleaded that the plaintiffs are not the title or possession holder of the suit house, and late Rambisal Gupta was not the absolute owner of the suit house. The suit house is the property of the Hindu undivided family, and late Rambisal Gupta did not have the right to execute any will with respect to the suit house. He also denied the execution of any will by Rambisal Gupta on 24.08.2006. The defendant No.2 is in actual physical possession of the suit house. The plaintiffs have not acquired 4 any right or title over the suit house by any will allegedly executed by the late Rambisal Gupta. The plaintiffs have mutated their names in the municipal records without service of any notice to the defendant No.2. Merely recording his name in the municipal records, he would not become the owner of the suit house. He also denied the alleged license given by the plaintiffs. It is further pleaded that the suit is undervalued and no proper court fees has been paid by the plaintiffs. The plaintiffs have not claimed any relief for declaration of their title and for claiming possession, they have to prove their title first and the mutation entries is not the deed of any title. After death of Rambisal Gupta, all his legal heirs are the necessary parties with respect to settlement of his entire properties by the alleged will, but they have not been made as a party defendants, and therefore, the suit suffers from non-joinder of necessary parties. It is further pleaded that the sons of Rambisal Gupta, namely; Ramgopal, Pyarelal, Ganesh Prasad, Mahesh Prasad (since deceased) and Suresh Prasad were members of joint family and the suit house is also the property of joint family. Late Rambisal Gupta alone cannot dispose of the suit house by executing the will and he was not competent to do so. If any will is found to be executed by him, it is executed under the undue influence of the plaintiffs. Rambisal Gupta was a respected person of the Gupta community, but there is no attesting witness in the alleged will deed belonging to Gupta community, there was no legal necessity to execute the will, he was very old person and was not in sound mental and physical status. The suit house was earned from the income of the business of the members of Hindu joint family and in the family partition/settlement of the properties, the suit 5 house was obtained by the defendant No.2. The defendants No. 1 & 2 are the owners of the suit house and the plaintiffs are not the title holder of the suit house. 6. The defendant No.2 has also filed his written statement separately and he too has denied the plaint averment and pleaded in his written statement that, late Rambisal Gupta was not the sole owner of the suit house and was not competent to execute any will with respect to the suit house. He also denied the execution of any will by Rambisal Gupta. The suit house was earned by the income of joint family business and it is the joint family property. The plaintiffs have got recorded their names in the municipal records without service of any notice to him and the defendant No.2 is in exclusive possession of the suit house, where he is running his business in the name and style of ‘Baba Glass and Plywood’. It is further pleaded that, the suit is undervalued and no ad- valorem court fees has been paid. He also denied the execution of will by late Rambisal Gupta. It is also pleaded that the suit has not been filed for declaration of their title and without any title, the plaintiffs cannot claim possession of the suit house. The other members of the family are the necessary parties, because the plaintiffs are claiming that the properties fo the family have been settled by virtue of the will allegedly executed by late Rambisal Gupta and therefore, there is defect of non-joinder of parties in the suit. He also raised suspicion over the will, as there was no necessity to execute the said will, the suit house was the property of hindu undivided family and it cannot be disposed of by will by late Rambisal Gupta alone. There is no witness of the Gupta community and at the time of execution of alleged will, late 6 Rambisal Gupta was not in sound state of mental and physical status and he was quite old person. In the family settlement, the suit house was obtained by the defendant No.2 and the plaintiffs have no right or title over the suit house and not entitled for any relief of possession over the suit house. 7. Based on the pleadings of the parties, the learned trial Court has framed the following issues:- “1. क्या स्वቇኍया रामबिसाल ቇኍ቎ኋ ቛኋरा बिष्पाबित वसायातम बिक 24-08-2006 क असारा ቇኍण असाची 'अ' म बि त व मक क स्वम है"? 2. क्या स्वቇኍया रामबिल ቇኍ቎ኋ क# उ्ሹ वसायात बिष्पाबित करा क अधि'करा है" ? 3. क्या ्ቚकराण म आवश्याक पा्ቌकरा, क असाया#ज है. ? 4. क्या वቇኍण ቛኋरा व क उबिचीत मल्याक बिकया ቇኍया है" ? 5. क्या वቇኍण क व मक क रिरा्ሹ आधि'पात्या ्ቚ቎ኋ करा क अधि'करा है. ? 6. अन्या साहैयात एंव व व्याया ?” 8. In support of their claims, the plaintiffs have examined Yogesh Chandra Gupta/PW-1, Ramgopal Gupta/PW-2, Ganesh Prasad Gupta/PW-3 and relied upon the documents; exhibit P-1, which is the copy of legal notice dated 15.05.2014, exhibit P-2 is the postal receipt, exhibit P-3 is the copy of legal notice dated 15.05.2014, exhibit P-4 is the postal receipt, exhibit P-5 is the will deed dated 24.08.2006. 9. The defendants have examined Anil Gupta/DW-1 and he relied upon the document of guideline of the year 2013-14 for market value of the property as exhibit D-1. 10. After considering the oral as well as documentary evidence led by the parties, the learned trial Court has decreed the suit of the plaintiffs 7 holding that, late Rambisal Gupta was the absolute owner of the suit house and he was competent to dispose of the suit house by the will and the plaintiffs are the owners of the suit house by virtue of the will dated 24.08.2006 executed by late Rambisal Gupta and the plaintiffs are entitled for decree of the possession of the suit house, which is under challenge in the present first appeal. 11. Learned counsel appearing for the appellants/defendants No.1 & 2 would submit that, the learned trial Court has committed an error in law and facts, while granting decree for vacant possession of the suit house. The suit was only for vacant possession based on the title claimed through the will dated 24.08.2006, whereas the due execution of the will, the competency of late Rambisal Gupta to execute the will and a title of the plaintiffs over the suit house are specifically denied by the defendants and the title of the plaintiffs is in cloud, and therefore, without there being any claim for declaration of title, the decree for vacant possession cannot be passed. The suit only for possession without declaration of title is not maintainable, when the title of the plaintiffs itself is in cloud. He would further submit that, the claim of the plaintiffs are based on the will dated 24.08.2006, the defendants have denied the execution of will and pleaded that the testator was not in sound state of physical and mental condition and it was under influence of the plaintiffs, and therefore, there are suspicious circumstances in the execution of will, which ought to have been explained by the plaintiffs to prove the due execution of will by examining its attesting witnesses, as required under the law, but the plaintiffs have not produced any attesting witness of the will and have not proved the same in 8 accordance with law, therefore, no decree for possession can be passed in their favour. He would also submit that, even if the execution of will is not denied by the defendants, the plaintiffs are required to prove the due execution of the will. In absence of the necessary parties and pleadings with respect to entire properties of the joint family and its settlement, it cannot be held that the parties have settled the family property as per their convenience and they cannot challenge the execution of will and they are stopped by the doctrine of ‘estoppel’ and have erroneously interpretate the judgment passed by the Hon'ble Supreme Court in the case of “Shyam Telelink Limited Now Sistema Shyam Teleservices Limited v. Union of India” 2010 (10) SCC 165, therefore, the impugned judgment and decree is erroneous and liable to be set aside. 12. 12. On the other hand, learned counsel appearing for the respondents No. 1 to 4 opposes the submissions made by learned counsel for the appellants and submitted that, the defendants have failed to prove that the suit house was purchased from the income of joint family and it was the joint family property. The defendants have also not produced any documentary evidence that the suit house was obtained by them in family partition or settlement. The parties are settled in their respective properties by virtue of the settlement made in the will dated 24.08.2006 executed by late Rambisal Gupta and the said will has been acted upon by the parties, therefore, there is no need to prove the said will by examining its attesting witnesses. Since the title has been conferred upon the plaintiffs with respect to the suit house, they are not required to claim title over the suit house. Merely denying the title by the 9 defendants does not amount to cloud over the title of the plaintiffs, and therefore, the plaintiffs have filed their suit for vacant possession without claiming their title, which was maintainable and the learned trial Court has rightly decreed the suit in their favour. He would further submit that the other members of the family are not the necessary parties as the defendants are in possession of the suit house and the plaintiffs are claiming possession from the defendants, therefore, there is no illegality or perversity in the impugned judgment and decree passed by the learned trial Court and the appeal filed by the defendants is liable to be dismissed. 13. I have heard learned counsel for the parties, considered their rival submissions and gone through the record of the trial Court. 14. The appellants have raised two issues in the appeal for its determination i.e. (1) whether the title of the plaintiffs over the suit house is under cloud and without claiming the relief of declaration of title, the suit only for possession would not be maintainable, and (2) whether the plaintiffs are required to prove the due execution of will by late Rambisal Gupta on 28.04.2006 or not. 15. The prayer for declaration of title is necessary when the defendants have denied the title of the plaintiffs and challenged the same, and raised a cloud on the title of the plaintiffs to the suit properties. A cloud is said to rise over the property of the person when some apparent defect in his title to the property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property. 10 16. In the matter of “Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and others” 2008 (4) SCC 594, the Hon'ble Supreme Court has laid down the law that, where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. In para 13 & 14 of its judgment, the Hon'ble Supreme Court has examined the legal position regarding the requirement of seeking a declaration of title, which reads as under:- “13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will 11 have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.” 12 17. The Hon’ble Supreme Court has summarized the position with regard to the claim in the suit, and in para 21 of “Anathula Sudhakar” case (supra), it has been held that:- “21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a 13 finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” 18. In the present case, the defendants have specifically denied the title of the plaintiffs over the suit house. They also denied the execution of the will by late Rambisal Gupta on 24.08.2006, by which the plaintiffs are claiming their title. In paragraphs 19.2 to 19.5 of the written statement, the defendants have denied the title and competency of late Rambisal Gupta to execute the will and claimed title upon the defendants. It is necessary here to reproduce the contents of the written statement, which reads as under:- 14 “19-2 यह कि वादीगण ቛኋरा घोषण लिए किसी ्ቚरा वादी ्ቚस्तुतु नह किय गय ह. किन्तु आलिपत्य लिए सीवा"्ቚथम वादीगण अपन स्वात्वा ्ቚमणिणतु रान आवाश्य ह। वादीगण ቛኋरा वा राजस्वा अणि*ख म, नज- म, नम दीज" हन तुथ स्वामिमत्वा लिए वाकिन नह ह। वादीगण ቛኋरा वादी म, स्वा. ቦኍ रामकि0शा गप्तु वासीयतुनम आरा परा ्ቚकितुवादीगण सी वादी मन, दुन 4 आलिपत्य म5ग रातु ह। वादीगण म6तु रामकि0शा प-वा" म6तु प्ቔ महशा ्ቚसीदी गप्तु उ्ቈरालिरा ह:। स्वा. ቦኍ रामकिवाशा गप्तु म6त्य 0दी उन ्ቚत्य सी्ቘलि्ቈ लिए उन सी* प्ቔ आवाश्य प्ቌरा ह। स्वा. ቦኍ रामकि0शा गप्तु प्ቔ= म, रामगप, प्यरा , गणशा ्ቚसीदी, एवा5 सीराशा ्ቚसीदी आवाश्य प्ቌरा ह, सीथ ह स्वा. ቦኍ रामकि0शा गप्तु 4 प्ቔ ቦኍमतु दुग" * आवाश्य प्ቌरा ह। वादी म, म6तु रामकि0शा प्ቔ तुथ प्ቔ ቦኍमतु दुग" 0ई प्ቌरा रूप म, सी5यजिजतु न रान राण वादी आवाश्य प्ቌरा असी5यजन राण वाकिन रूप सी पषणय नह ह। 19-3 यह कि स्वा. ቦኍ रामकि0शा गप्तु तुथ उन प्ቔ मशाA रामगप, प्यरा, गणशा ्ቚसीदी म6तु महशा ्ቚसीदी एवा5 सीराशा ्ቚसीदी सी5यक्तु परिरावारा सीदीस्य थ, तुथ वादी मन सी5यक्तु परिरावारा 4 सी्ቘलि्ቈ ह। जिजसी अ स्वा. ቦኍ रामकि0शा गप्तु ቛኋरा वासीयतु य अन्य किसी * ्ቚरा सी ्ቤयनतु नह किय ज सीतु थ। इसी ्ቚरा ्ቚराण अणि*वाचन अनसीरा लिथतु वासीयतुनम यकिप स्वा. ቦኍ रामकि0शा गप्तु किनष्पदिदीतु रान अलिरा नह थ। सीथ ह यदिदी ऐसी वासीयतुनम किनष्पदिदीतु किय गय ह, तु स्वा. ቦኍ रामकि0शा गप्तु ्ቚ*किवातु रा किनष्पदिदीतु किय गय ह। क्यकि *टापरा म, रामकि0शा गप्तु अत्य5तु सीम्मकिनतु ्ቤሹኌक्तु राह ह, तुथ गप्तु सीमज अन सीमजिज ्ቤሹኌक्तु उन सी቞ኚप म, थ। सीमज ई * ्ቚमख य अन्य ई ्ቤሹኌक्तु अन्ቚमण सी्ቌ रूप म, नह ह, ज ्ቚटा रातु ह कि स्वा. ቦኍ रामकि0शा गप्तु कि0न किसी जनरा वात्सीयतुनम अ5तु"वास्तुओं सी * जसी ्ቚतुतु हतु ह, कि उन्ह, ्ቚ*किवातु रा वासीयतुनम किनष्पदिदीतु रावाय गय ह, जिजसी ई किवालि औलिचत्य नह ह, सीथ ह स्वा. ቦኍ रामकि0शा गप्तु अत्यलि वा6्ቍ ्ቤሹኌक्तु थ, तुथ किसी ्ቚरा सीचन सीमझन 4 य किसी ्ቚरा स्वातु5्ቔ किनण"य न 4 ሹኌRकितु म, नह थ अतुA उन्ह ्ቚ*किवातु रा किनष्पदिदीतु किय गय वासीयतुनम किवालि दृकिTण सी पषणय नह ह। 19-4. यदी मन तुथ अन्य सी* सी्ቘलि्ቈ स्वा. ቦኍ राम कि0शा गप्तु 4 पतु6 तुथ सी5यक्तु परिरावारा 4 आय सी अቌኌजVतु सी्ቘलि्ቈ ह। स्वा. ቦኍ राम कि0शा गप्तु तुथ उन सी* प्ቔगण मशाA राम गप, वादी स्वाय5, सी5यक्तु रूप सी ह ( ह्ቑ"वायरा ) तुथ आई तुथ आई मिम ्ቤपरा किय रातु थ तुथ उसी सी सीयक्तु रूप सी आय अቌኌजVतु रा परिरावारा सी* सीदीस्य 4 णिशा्ቌ तुथ *राण पषण हतु थ। जिजसीम, सी गणशा ्ቚसीदी ्ቑक्टारा हुय औरा महशा ्ቚसीदी इ5जिजकिनयरा हरा रा0 म, नYरा रान ग थ। इसी ्ቚरा ्ቚकितुवादी ्ቅम5 1 किपतु स्वा. ቦኍ रामकि0शा 4 सी्ቘ-ण" सी्ቘकितु सी5यक्तु किहन्दू परिरावारा 4 थ जिजसी परिरावारिरा ्ቤवाR अनसीरा किवा*जन हुआ ह तुथ वादी मन ्ቚकितुवादी म5 2 ्ቚप्तु ह। 15 19-5 यह कि वादीगण वादी प्ቔ परा 8 म, अणि*वाचन किय ह कि ्ቚकितुवादीगण आलिपत्य म, हन 0तुय गय ह इसी ्ቚरा ज0 तु परिरावारिरा ्ቤवाR सी वादी मन मक्तु नह रा लिय जतु तु0 तु किसी * ्ቚरा सी वासीयतुनम नह ह सीतु थ, तुथ परिरावारिरा ्ቤवाR किवा*जन हतु ह। इसीलिए ज0 वादी मन परिरावारिरा ्ቤवाR तुहतु किवा*जन म, ्ቚकितुवादी म5 1 ्ቚप्तु ह गय ह। तु0 उसी सी5दी*" म, वासीयतुनम किनराथ" ह। एवा5 वादी मन ्ቚकितुवादी म5 1 स्वामिमत्वा 4 ह। जिजसी ्ቚकितुवादी . 2 किनवासी, दुन एवा5 गदीम ह।” 19. From the pleadings of the defendants, prima facie, it reveals that there is a cloud on the plaintiffs’ title over the suit property, and the law definitely obliges him to seek relief of declaration of title, and a mere suit for recovery of possession would not be sufficient. Further, the plaintiffs’ claim is on the basis of a will dated 24.08.2006, allegedly executed by late Rambisal Gupta. The execution of said will is denied by the defendants, and the suspicious circumstances have been pleaded in the written statement; thus, the plaintiffs are also required to prove the due execution of the will by late Rambisal Gupta and to remove all the suspicious circumstances alleged by the defendants by examining the attesting witnesses as required under the law. 20. The law in this regard is settled that the propounder has to remove all the suspicious circumstances that appeared or raised by the parties. The requirement to prove the will is provided under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. 21. 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 16 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. 22. 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, (2003) 2 SCC 91. 23. 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." 24. 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 alive, and it is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. However, the proviso to Section 68 of the Evidence Act, 1872, is not available in case of a will. 17 25. In the matter of Giria Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346 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 a 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 his 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 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 18 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." 26. In the matter of H. Venkatchala Iyengar v. B. N. Thimmajamma and others, AIR 1959 SC 443, the Hon’ble 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:- "23. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. …….” 27. The principle laid down in the above-stated judgment has been followed with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others, (1977) 1 SCC 369, Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another, (1974) 2 SCC 600, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others, (2009) 4 SCC 780 and Jagdish Chand Sharma v. Narain Singh Saini (Dead) through Legal Representatives and Others, 2015 (8) SCC 615. 28. In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another, (2017) 1 SCC 257, the Supreme Court has again 19 reiterated the need of proving the attestation of will in accordance with Section 63(c) of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act, 1872. 29. 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 that rests on the propounder is discharged. 30. In Janki Narayan Bhoir (supra), the Supreme Court while considering Section 63 (c) of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, held that mere proof of signature of the testator on the will 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 20 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 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 21 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.” 31. Recently, in the case of “Ramesh Chand (D), through LRs v. Suresh Chand and another” 2025 SCC Online SC 1879, the Hon'ble Supreme Court has considered the essentials to prove the will. In paragraphs 26 and 27 of its judgment, it has been held that:- “26. Further, in the case of Meena Pradhan v. Kamla Pradhan following essentials to prove a Will were mentioned: “10.1. 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; 10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. A will is required to fulfill 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 22 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; 10.4. 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; 10.5. 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; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. 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. 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate 23 suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier. 10.9. 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; 10.10. One who alleges fraud, fabrication, undue influence et cetera 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. 10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”. 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.” 27. Considering the aforementioned cases, it is clear that in order to rely upon a Will, the same has to be 24 proved in accordance with law. A Will has to be attested by two witnesses, and either of the two attesting witnesses have to be examined by the propounder of the will. In the present matter, we have carefully perused the Trial Court's judgment. There is not an iota of discussion about the validity of the Will as contemplated under Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872 and yet, the validity of the Will has been upheld. This is contrary to law. Even the High Court, while evaluating the validity of the Will, has gone on a different tangent and has erroneously held that the requirement of examining the attesting witnesses springs into action only in cases of disputes between legal heirs. Such an observation is quite contrary to law, for Section 68 of the Evidence Act makes it mandatory to examine at least one of the attesting witnesses of the Will. Mere fact that the Will was registered will not grant validity to the document. Besides that, the will propounded by plaintiff is surrounded with suspicious circumstances, in as much as the alleged propounder of the Will, Lt. Sh. Kundan Lal, had four children, including the plaintiff and the defendant No. 1. There is not even a whisper of reasoning as to why the propounder of the Will choose to exclude other three children from the bequest, and whether any other properties or assets were given to them. It is highly unlikely that a father would grant his entire property to one of his children, at the cost of three others, without there being any evidence of estrangement between the father and the children. This suspicious circumstance surrounding the will has not been removed by the plaintiff either. Hence, for these cumulative reasons, the Will propounded by plaintiff though registered would not confer any valid title on the plaintiff either.” 32. Reverting to the facts of the present case, the plaintiffs have not examined any of the attesting witnesses of the will to prove that late Rambisal Gupta, has executed a will on 24.08.2006, and he was 25 capable of executing the will, and he was in a sound state of mental and physical condition. 33. PW-1/Yogesh Gupta admitted in his evidence that he did not know from where Rambisal Gupta had acquired the property. He also admitted that the sons of Rambisal Gupta, namely, Ramgopal, Pyarelal, Ganesh Prasad, Mahesh Prasad and Suresh, were members of the joint family and they jointly earned for the family and acquired property from their joint income. He further admitted in para 18 that he has not filed any document with respect to the partition of the property. 34. PW-2/Ramgopal Gupta has stated in his cross-examination that his brother Pyarelal, Dr. Ganesh Prasad, late Mahesh Prasad Gupta, Suresh Kumar Gupta and his sister Durga Bai are the legal heirs of late Rambisal Gupta. His father and all his brothers were jointly residing in the suit house and running their business jointly. He did not know when or from whom his father had purchased the suit property. He admitted that the suit property was purchased during the lifetime of his grandfather, Ramadhar Gupta, and his father and grandfather were running their business jointly. He denied that there is no partition of the property between him and his brothers, and the will is with respect to the partition of their property. 35. PW-3/Ganesh Prasad Gupta has also stated in his cross-examination that he and his brother, Mahesh Gupta, were in service, and his other brothers were jointly running their business. During the lifetime of his father, he too was in business along with his brothers jointly and a member of the joint family. The will deed is in the form of a partition of 26 the property between them. He also admitted that at the time of the purchase of the suit property, his grandfather was alive. 36. Except for these three witnesses, no other witness has been examined by the plaintiffs to prove the due execution of the will as per the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, and he failed to meet the requirements, as discussed hereinabove. 37. Although, the alleged will dated 24.08.2006 is a registered will, but the registration of the alleged will does not dilute the burden to prove of due execution of will, as has been laid down by the Hon'ble Supreme Court in the case of “Leela and others v. Muruganantham and others” 2025 (4) SCC 289 and in para 22, it has been held that:- “22. There can be no doubt with respect to the manner in which execution of a will is to be proved. In the light of plethora of decisions including the decisions in Moturu Nalini Kanth v. Gainedi Kaliprasad, 2024 (16) SCC 78 and in Derek A.C. Lobo v. Ulric M.A. Lobo, 2024 (15) SCC 202, this position is well settled that mere registration of a will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Succession Act and Section 68 of the Evidence Act. It is not the case of the appellant that the will dated 6-4- 1990 is a registered one.” 38. From the entire evidence led by the plaintiffs, this Court is of the considered view that, plaintiffs have failed to prove the due execution of 27 the will deed dated 24.08.2006 by late Rambisal Gupta and have failed to remove all the suspicious circumstances in the execution of the alleged will. 39. The learned trial Court after relying of the judgment of “Shyam Telelink” case (supra) has held that, the parties are stopped by the principle of estoppel, as they have already acted upon the will deed (exhibit P-5), however, from the evidence led by the plaintiffs, it does not transpires as to what property are obtained by the respective plaintiffs under the will and as per their admission in the evidence, they have not filed any document with respect to their property obtained through alleged will or the will is actually acted upon by the parties. In para 28 of its judgment, the learned trial Court has considered the alleged will (exhibit P-5) as the deed of family settlement, but the said deed has been denied by the defendants. It has also been held that the defendants have not challenged the execution of will in the evidence of PW-1, PW-2 and PW-3, whereas in para 17 of PW-1, para 15 of PW-2 and para 15 of PW-3, there is challenge of execution of will by late Rambisal Gupta, and therefore, the finding recorded by the learned trial Court that the will is not challenged in the evidence of the witnesses is incorrect. 40. The very basis of the claim of the plaintiffs is the alleged will dated 24.08.2006 (exhibit P-5) and despite denial of execution of the will by late Rambisal Gupta, the same has not been proved by the plaintiffs by examining any of its attesting witnesses and the suit is also not for declaration of their title, therefore, this Court is of the considered 28 opinion that the learned trial Court has erred in granting decree of possession of the suit property in favour of the plaintiffs. 41. As a fallout, the appeal filed by the appellants/defendants is allowed, the impugned judgment and decree dated 01.11.2018, passed by the learned trial Court, is set aside, and consequently, the suit of the plaintiffs is dismissed. 42. Parties to bear their own cost(s). 43. An appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge ved