C/SA/144/2025 ORDER DATED: 05/05/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 144 of 2025 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In R/SECOND APPEAL NO. 144 of 2025 ================================================================ GOSWAMI KISHORGIRI DEVGIRI Versus GOSWAMI GEETABEN DHANGIRI ================================================================ Appearance: MR PJ KANABAR(1416) for the Appellant(s) No. 1 MR MEHUL M MEHTA(3416) for the Respondent(s) No. 1 ================================================================ CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER Date : 05/05/2025 ORAL ORDER 1. The present Second Appeal has been filed under Section 100 of Code of Civil Procedure, being aggrieved by the judgment and decree dated 31.12.2024 passed by Additional District Judge, Radhanpur in Regular Civil Appeal No.3 of 2022 wherein the first appellate Court has confirmed the judgment and decree passed in Regular Civil Suit No.10 of 2018 by Principal Senior Civil Judge, Radhanpur. 2. The parties are referred to as their original status in Regular Civil Suit No.10 of 2018. The appellant herein is referred to as the plaintiff and the respondent herein is referred to as the original defendant. FACTUAL AVERMENTS 3. Brief facts arising in the present Second Appeal are that the plaintiff filed Regular Civil Suit No.10 of 2018 on the ground that the paternal aunt of the plaintiff late Shantaben had deep affection and emotional bond with the plaintiff and out of love and affection late C/SA/144/2025 ORDER DATED: 05/05/2025 Shantaben executed a will in favour of the plaintiff and it was the plaintiff who used to take care of late Shantaben who ultimately expired on 07.10.2016. It is the case of the plaintiff that late Shantaben, during her life time, had executed a will and had bequeathed her properties in favour of the plaintiff and that the said will was legally registered with the Sub Registrar Office at Sami, and it is the case of the plaintiff that the defendant fraudulently got an illegal will registered in the registration No.1358/2013 at the Sub Registrar Office at Sami, and it is the case of the plaintiff that based on the said will executed in the year 2003 mutation entry was entered in the revenue record. 4. The plaintiff had filed the suit against the defendant for a declaration to declare the will executed by late Shantaben in favour of the defendant dated 22.10.2013 to be quashed and set aside and that pursuant to the said will executed on 02.03.2013, the defendant does not have any right, title, interest in the property and in the said suit the plaintiff had sought for injunction with respect to the suit property. The trial Court had framed issues vide Exhibit-43 on 13.09.2019 which reads as under:- (1) Whether the plaintiff proves that as the plaintiff was bearing the maintenance of and looking after the plaintiff’s grandmother, Shantaben Shyamgar, and as she had immense love and affection for the plaintiff, she has had the final registered will of the suit properties registered lawfully in the Sami Sub Registrar Office vide Sr. No. 393/16, dated 02/08/2016? Page 2 of 14 C/SA/144/2025 ORDER DATED: 05/05/2025 (2) Whether the plaintiff proves that the defendant in this case with mala fide intentions of usurping the suit properties of the plaintiff’s grandmother and by hatching a conspiracy to take undue benefit of feelings and gullibility of plaintiff’s grandmother, Swami Shantaben, prepared concocted and illegal will without her knowledge in 2013 and had it registered in the Sami Sub Registrar Office vide Sr. No. 1358/13? (3) Whether the plaintiff proves that the suit properties are under the lawful possession of the plaintiff? (4) Whether the plaintiff proves that the defendant in this case wants to usurp the suit properties from the plaintiff on the basis of the concocted will? (5) Whether the plaintiff proves that the will in favor of the defendant regarding the suit property registered vide Sr. No. 1358/13 is meaningless and null and void for the plaintiff, and that the defendant has no legal right on the suit properties? (6) Whether the defendant proves that as the defendant was taking care and looking after Swami Shantaben Shyamgar, and as she had trust and faith on the defendant, and as she was residing with the defendant at Harij, Swami Shantaben Shyamgar made a will in favor of the defendant in her complete state of consciousness and had it registered in the Sami Sub Registrar Office vide Sr. No. 1358/13? (7) Whether the defendant proves that the plaintiff, by deceiving Swami Shantaben Shyamgar, and by getting benefit of her blindness, made a false and concocted will? Page 3 of 14 C/SA/144/2025 ORDER DATED: 05/05/2025 (8) Whether the defendant proves that the husband of the defendant had been managing all the properties of Swami Shantaben Shyamgar for years and that the defendant had been in possession of the suit properties on the date of filing of the suit? (9) Whether the defendant proves that the as the registered will, made by Swami Shantaben Shyamgar, and had it registered vide Sr. No. 393/16, being illegal is entitled to be set aside? (10) Whether the plaintiff is entitled to the relief sought in the suit? (11) Whether the defendant is entitled to the relief sought in the counter-claim? (12) What order and decree? 5. The defendant in the said suit filed the counter claim vide Exhibit-15 and in the said counter claim, the reliefs that were sought by the defendant were to declare the will executed in favour of the plaintiff i.e. the registered will dated 02.08.2016 to be illegal, fraudulent and to quash and set aside the said will and for a declaration to declare the defendant to be the owner of the property by virtue of registered will No.1358 of 2003 and for an injunction against the defendant with respect to the suit property. 6. The plaintiff examined himself vide Exhibit-55 on 06.03.2021 and was cross-examined on 10.03.2021 and 20.03.2021. After the examination-in-chief of the plaintiff was over, the plaintiff gave an application on 09.04.2021 to withdraw the said suit and the trial Court after hearing, both the parties permitted the plaintiff to C/SA/144/2025 ORDER DATED: 05/05/2025 withdraw the said suit by an order dated 06.07.2021 and the Court held that the suit shall proceed with respect to the counter claim filed by the defendant. 7. The plaintiff has examined vide Exhibit-55, the defendant power of attorney was examined vide Exhibit-94 and the witness of the will executed in favour of the defendant was examined vide Exhibit-114 and after taking into consideration the documentary evidence and the oral evidence and giving the findings on all the issues, more particularly, the counter claim, the trial Court allowed the counter claim filed by the defendant and aggrieved by the said judgment and decree the plaintiff filed Regular Civil Appeal No.3 of 2022 and the said Regular Civil Appeal was rejected and the first appellate Court confirmed the judgment and decree passed by Principal Senior Civil Judge, Sami in Regular Civil Suit No.10 of 2018 aggrieved by the said order, the present Second Appeal has been filed. SUBMISSIONS ON BEHALF OF PLAINTIFF 8. Learned advocate for the plaintiff has mainly argued that though the plaintiff has withdrawn the suit, the trial Court has taken into consideration issue No.1 to 5 and issue No.10 and has given a finding that the plaintiff was not able to prove the said issues. Therefore, it has been argued that once the suit has been withdrawn the question of considering the said issue would not arise for the trial Court to give a finding in negative. 9. The learned advocate for the plaintiff has also argued that the C/SA/144/2025 ORDER DATED: 05/05/2025 defendant was also not able to prove the will as the witness of the said will which has been produced vide Exhibit-96 has also not deposed that the testator of the said will i.e. late Shantaben has signed in presence of the witness and/or the fact that the witnesses have signed in presence of late Shantaben, and therefore, as the said will is not proved under the provisions of Section-63 of the Indian Succession Act. The trial Court and the appellate Court could not have come to the conclusion that the defendant has been able to prove that the will which has been produced vide Exhibit-96 is a genuine will of late Shantaben. 10. Learned advocate for the plaintiff has also argued that though the plaint has been withdrawn by the plaintiff, right of the plaintiff with respect to the suit property and claiming right with respect to the will that has been executed in the year 2016 i.e. dated 02.08.2016 was required to be taken into consideration by the trial Court and the appellate Court while deciding the counter claim of the defendant. 11. Learned advocate for the plaintiff has also argued that after withdrawal of the plaint, the trial Court and the appellate Court were not justifying in recording the findings on issue No.1 to 5 in negative. It has also been argued that the trial Court and the appellate Court could not have come to the findings that the defendant has proved registered will executed on 22.10.2013. It has also been argued that the trial Court and the appellate Court could not have come to the conclusion as the defendant herself did not enter the witness box and the power of attorney holder of the defendant has deposed before the Court, and therefore, also the trial Court could not have passed the judgment and decree allowing the said counter claim and in view of C/SA/144/2025 ORDER DATED: 05/05/2025 the said matter it has been argued that there are substantial question of law involved in the present Second Appeal and the present Second Appeal is required to be admitted on the substantial questions of law which have been suggested in the memorandum of appeal. Learned advocate for the plaintiff has relied on the following judgment:- (i) Mahesh Govindji Trivedi v. Legal Heirs of Bhagvanji Govindji Trivedi reported in 2013(0) GLHEL-HC 230521. (ii) Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead, Through Lrs.) reported in 2023 (0) AIJEL-SC 72759 (iii) Vasantha (Dead) Through Legal Representative v. Rajlakshmi Alias Rajam (Dead Through legal representatives reported in (2024) 5 SCC 282 SUBMISSIONS ON BEHALF OF RESPONDENT- ORIGINAL DEFENDANT 12. Per contra, learned advocate for the defendant has mainly argued that the fact that the plaintiff has withdrawn the civil suit wherein the plaintiff had alleged that a fraudulent will has been executed in favour of defendant and that by misguiding and taking advantage of the health of late Shantaben the defendant has executed will dated 22.10.2013, and therefore, after having withdrawn the said civil suit wherein the plaintiff had sought for cancellation of registered will executed on 22.10.2013, the plaintiff cannot come forward with a defence that the said will executed on 22.10.2013 was not a genuine will executed by late Shantaben. Learned advocate for C/SA/144/2025 ORDER DATED: 05/05/2025 the defendant has also argued that under the principal of estoppel also once the suit has been withdrawn, the plaintiff cannot raise any right challenging the said will dated 22.10.2013. 13. Moreover, the learned advocate for the defendant has also argued that timing of withdrawal of the plaint is also relevant in the adjudication of the counter claim, as the plaint was withdrawn by the plaintiff after his deposition was over and therefore as the plaintiff knew that he would not succeed in the suit he has withdrawn the suit. It has also been argued that the defendant has examined the witness of the will executed on 22.10.2013 vide Exhibit-114 and the said witness has deposed on the fact of knowing late Shantaben and in the said examination-in-chief the said witness also deposed that the said will has been executed on 22.10.2013 by late Shantaben in his presence and in the presence of another witness Virambhai Bhurabhai Rabari and it has also been stated in his deposition that the said witness and Virambhai Bhurabhai Rabari have put their signature and thumb impression on the said registered will and at the time of execution of the said will, late Shantaben was in a good mental condition and in his presence the said will has been executed by late Shantaben, therefore, it has been argued that the defendant has been able to prove the execution of the said will as per provisions of law. Hence as there are no substantial questions of law involved and the present Second Appeal is required to be dismissed at the admission stage. ANALYSIS 14. Having heard learned advocates for the parties. The fact remains that there are two rival contentions that were placed before C/SA/144/2025 ORDER DATED: 05/05/2025 the trial court in Regular Civil Suit No. 10 of 2018. The plaintiff claimed right by virtue of the registered will dated 02.08.2016 and in the said suit the plaintiff has not sought for a relief to declare the will executed in favour of the plaintiff dated 02.08.2016 to be valid and the only relief that the plaintiff is sought in the suit is challenging the registered will executed in favour of the defendant on 22.10.2013, therefore, the following facts are admitted facts:- A. The plaintiff claimed right by virtue of will executed by late Shantaben on 02.08.2016. B. The defendant claim right by virtue of will executed by late Shantaben on 22.10.2013. C. The plaintiff had filed the suit challenging the registered will executed on 22.10.2013. D. The defendant had filed counter claim wherein the defendant had challenged the will executed in favour of the plaintiff in the year 2016. E. In the said counter claim the defendant had also claimed right of being the owner of the property by virtue of will executed in favour of the defendant on 22.10.2013. F. After giving oral evidence in the Civil Suit No.10 of 2018, the plaintiff has withdrawn the suit. G. The plaintiff does not produce any evidence as envisaged under Section 63 of the Indian Succession Act read with section 68 of C/SA/144/2025 ORDER DATED: 05/05/2025 Evidence Act to prove the will executed on 02.08.2016. H. The defendant has produced vide Exhibit-114 the oral evidence of the witness of the said will executed on 22.10.2013. 15. Therefore, the fact remains that though the plaint was withdrawn, the plaintiff was very much aware that in the counter claim the defendant has sought for cancellation of the registered will that has been executed in favour of the plaintiff on 02.08.2016. Therefore, the burden of proof was on the plaintiff to prove the execution of the will executed on 02.08.2016 and the plaintiff has miserably failed to prove the execution of the said will though the said will is registered will but mere registration of the will does not attach to it as stamp of validity and has to be proved in terms of legal mandate, and therefore, though the issue No.7 & 9 were there and the fact that the burden of proof to prove the validity of registered will executed on 02.08.2016 was on the plaintiff, the plaintiff has miserably failed to prove the said will. Before arriving at the conclusion, certain provisions of Indian Succession Act and the Indian Evidence Act are required to be considered. Section 63 of the Indian Succession Act 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. Page 10 of 14 C/SA/144/2025 ORDER DATED: 05/05/2025 (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 acknowledgment 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.” 16. Section 68 of the Evidence Act are 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 :[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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” 17. Therefore, with respect to the registered will executed on 02.08.2016 there is no iota of evidence coming forward from the plaintiff to prove the execution of said will, and therefore, the plaintiff has not proved the execution of the will dated 02.08.2016. With respect to the execution of the registered will executed on 22.10.2013, the first fact which will have to be taken into consideration is that after filing the civil suit wherein the plaintiff has challenged the execution of registered will dated 22.10.2013 and C/SA/144/2025 ORDER DATED: 05/05/2025 seeking a relief to declare the said will to be illegal and quash and set aside the said will and for a relief that pursuant to the said will, the defendant does not have any right in the property, the plaintiff has withdrawn the said suit. The fact also remains that the defendant has also examined vide Exhibit-114 the witness of the said will executed on 22.10.2013 and the said witness has also categorically stated that the said will has been executed by late Shantaben in proper state of mind and that the said will has been executed by Shantaben in the presence of the said witness and another witness Virambhai Bhurabhai Rabari and that the witness Virambhai Bhurabhai Rabari signed in the said will in presence of late Shantaben and having admitted the said fact the said will has been duly proved under the provisions of section 63 of the Indian Succession Act and section 68 of the Evidence Act and that being the case the plaintiff cannot now come forward with the case that the said will executed on 22.10.2013 was not executed by late Shantaben. The finding that have been given by the trial Court and the appellate Court are well reasoned. 18. The learned advocate for the plaintiff has relied on the judgment reported in Mahesh Govindji Trivedi (supra) wherein it has been held that the suit filed by the legatee is barred for absence of probate held, as right would not be enforceable in absence of probate, decree cannot be given effect to until probate is taken. In the present case, it is not the case of the parties that by way of registered will defendant was made an executor in the said registered will executed on 22.10.2013, and therefore, the said judgment will not of any assistance to the plaintiff. Page 12 of 14 C/SA/144/2025 ORDER DATED: 05/05/2025 19. The judgment of Moturu Nalini Kanth (supra) on which the present plaintiff relies is also on the fact that mere registration of will, will not attach a stamp of validity and it has been proved in terms of legal mandate. The said judgment will be of no assistance to the plaintiff in the present case as the defendant has examined the witness of will as provided under section 63 of the Succession Act,1925 read with Indian Evidence Act 1872, section 68 and 69. 20. The judgment that has been relied on by the plaintiff i.e. Vasantha (Dead) Through Legal Representative (supra) will also be of no assistance to the plaintiff as the same is on the ground that it is a well settled that the lapse of limitation barred only the remedy but does not extinguish the title but in the present case, it is not the lapse of limitation which barres the plaintiff to raise the challenge of registered will executed on 22.10.2013 but the fact that the plaintiff having challenged the said registered will executed on 22.10.2013 has withdrawn the same, and therefore, the said judgment is also not of much assistance to the plaintiff in the facts of the present case. 21. 21. Considering the submissions made and after examining the findings of both the Courts below on the issue raised in the suit and upon examining the judgment and orders of both the Courts below, this Court is of the considered opinion that the learned advocate for the plainitff is unable to point out any infirmity, perversity or impropriety in the concurrent findings of the fact recorded by both the Courts below, not only that, the learned advocate for the plaintiff is unable to show that the findings recorded by the learned Courts are without any evidence or there is any illegality in the findings. Page 13 of 14 C/SA/144/2025 ORDER DATED: 05/05/2025 22. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon’ble Apex Court has observed as under:- “28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.” CONCLUSION 23. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The plaintiff has failed to prove his case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. 24. In view of the order passed in the main matter, Civil Application does not survive and stands disposed of accordingly. (SANJEEV J.THAKER,J) Manoj Kumar Rai Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: MANOJKUMAR RAI(HC01072), PRIVATE SECRETARY, at High Court of Gujarat on 09/05/2025 09:11:45