judgment : Narendra Kumar Vyas, J. 1. Heard on I.A. No. 03/2025, which is an application for deletion of the name of respondent No. 3 from the array of cause title. On due consideration the same is allowed and the name of the respondent No. 3 be deleted from the cause title. 2. This is plaintiff’s first appeal filed under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 10.03.2017 (Annexure A/1) passed by learned Additional District Judge, Bhatapara, District- Baloda Bazar Bhatapara (C.G.) in Civil Appeal No. H-03A/2010 (Ashwani Kumar Sahu Vs. Bholaram) whereby the suit filed by the plaintiff for declaration of title and permanent injunction, has been rejected. 3. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the Civil Appeal No. H-03A/2010 filed before the trial Court. 4. The plaintiff filed a civil suit for partition and possession mainly contending that:- (A) The plaintiff and the defendants are brother and sister and they are governed by the Hindu Law. It is the case of the plaintiff that ancestral property of old house in a dilapidated condition bearing sheet number 13-A, plot number 103/1, Khasra number 50, total area 314 square meters is situated in front of the main post office at Nayapara Ward, District - Bhatapara (hereinafter referred as “the suit land”) which is registered in the name of the plaintiff and the defendants. (B) It is also case of the plaintiff that he is working in Grasim Cement Plant and currently resides in the colony of Grasim Cement Plant but earlier he used to reside in the suit house itself. Defendant No. 1 resides in the said house with his family and whenever the plaintiff intends to come to the suit house with his family during holidays, then defendant No. 1 does not allow him to come to the said suit house with intend to evict the plaintiff from the suit house. It is also case of the plaintiff that defendant No. 1 has deliberately vandalized and caused serious damage to the said suit house so that the plaintiff cannot reside there. Being distressed by such act of defendant No. 1, the plaintiff verbally demanded his share from the defendants several times and asked for partition so that he could get his share and develop his part. Being distressed by such act of defendant No. 1, the plaintiff verbally demanded his share from the defendants several times and asked for partition so that he could get his share and develop his part. (C)It is also case of the plaintiff that when the defendants did not pay any attention to this, the plaintiff sent a notice on 04.11.09 through his Advocate to defendants No. 1 to 5 demanding partition of the suit house. The defendants have not taken any action for partitioning the suit property which has necessitated the plaintiff to file a suit for partition and separate possession of his share to the extent of 1/6 th share in the suit property admeasuring about 52.33 sq.m. 5. Defendant No. 1 has filed written statement denying the allegations made in the plaint. It has been contended that the defendant has orally asked the plaintiff to take his share in the suit property, but he has refused and has informed him that he will obtain his share through court process only. The defendant No. 1 has also filed counter claim contending that their grandfather Murar ji Wadher has bequeathed the suit land to him and his wife Sunita Wadher on 16.06.1993. This fact has come to his knowledge on 21.09.2011 when Ashish Dewangan has handed over the will during pendency of the case after filing of written statement. It has also been contended that on the basis of will the defendant No. 1 is the sole owner of the suit property, therefore, a declaration was sought with regard to title over the suit property and prayer for restraining the plaintiff from interfering in peaceful possession of the suit property and also prayed for rejection of the suit filed by the plaintiff. 6. The plaintiff has filed his reply to the counter claim denying the fact that the Will was executed by their grandfather in favour of the defendant and his wife and the said will dated 16.06.1993 is false and fabricated, thus, he prayed for rejection of the counter claim. Defendants No. 2 to 5 have also filed written statement contending that the house has been vandalized by defendant No. 1 without consent of the plaintiff and the defendants No. 2 to 5 and have supported the case of the plaintiff. 7. Defendants No. 2 to 5 have also filed written statement contending that the house has been vandalized by defendant No. 1 without consent of the plaintiff and the defendants No. 2 to 5 and have supported the case of the plaintiff. 7. He would further submit that defendant No. 1 after filing of the written statement did not appear, therefore, he was proceeded ex-parte by learned trial Court and the learned trial Court had passed ex-parte judgment and decree dated 06.10.2012 in favor of the plaintiff but subsequently the said ex-parte judgment and decree has been set aside in the proceeding under Order 9 Rule 13 of the C.P.C., vide order dated 29.10.2013 in M.J.C. No. 7/12. 8. Defendant No. 6, who is wife of defendant No. 1 has also filed written statement supporting the case of the defendant No. 1 and contended that the suit land is self-acquired property of the defendant No. 1 in view of the Will dated 16.06.1993 executed by the grandfather of the defendant No. 1, as such, she prayed for dismissal of the suit. 9. The learned trial Court on the pleadings of the parties has framed as many as 4 issues out of which issues No. 1, 2, 4 and 6 are relevant which are extracted below:- 10. The plaintiff to substantiate his case has examined himself as PW-1, Vimal Sahu (PW-2) and exhibited documents namely copy of najul sheet (Ex. P/1), notice receipt (Ex. P/2 to P/6), acknowledgment (Ex. P/7 to P/11), photographs (Ex. P/12 & P/13). 11. The defendant No. 2 to substantiate his case has examined Bharti Parmar (DW-1), Rashmi Parmar (DW-2) & Bhupendra Wadher (DW-3). The defendant No. 1 after setting aside of the ex-parte judgment and decree has examined Avdhesh Tiwari (DW-1), Nagendra Wadher (DW- 2), Smt. Sunita Wadher (DW-3) & Ashish Kumar Dewangan (DW-4) and exhibited documents namely Will (Ex. D/1), sale deed dated 21.02.1942 (Ex. D/2), sale deed dated 27.04.1992 (Ex. D/3), Khasra Panchshala Year 1967-68 (Ex.D/4), copy of plaint for declaration and permanent injunction (Ex. D/5), certified copy of order dated 05.02.2013 passed in Civil Suit No. 24-A/11 (Ex. D/6). 12. D/1), sale deed dated 21.02.1942 (Ex. D/2), sale deed dated 27.04.1992 (Ex. D/3), Khasra Panchshala Year 1967-68 (Ex.D/4), copy of plaint for declaration and permanent injunction (Ex. D/5), certified copy of order dated 05.02.2013 passed in Civil Suit No. 24-A/11 (Ex. D/6). 12. Learned trial Court after appreciating the evidence, material placed on record vide judgment and decree dated 10.03.2017 has dismissed the suit filed by the plaintiff and allowed the counter claim filed by defendants No. 1 & 6 and declared the defendants No. 1 & 6 as the owner of the suit house by virtue of the Will dated 16.06.1993 and restrained the plaintiff from interfering in the possession of defendants No. 1 & 6 in suit property. Being aggrieved with the judgment and decree dated 10.03.2017, the plaintiff has preferred the instant appeal before this Court. 13. Learned counsel for the appellant would submit that the impugned judgment and decree dated 10.03.2017 passed by the learned trial Court is bad-in-law, therefore, the same is not sustainable. He would further submit that the learned trial Court committed gross illegality in considering the cross suit of defendants No. 1 and 6 ignoring that the suit filed by them before the competent court based on the Will dated 16.06.1993 (which is subject matter of cross suit) has been withdrawn without there being any liberty. He would further submit that the learned trial court had also lost sight of the fact that the alleged Will is said to be executed on 16.06.1993 (Exhibit D-1) and within period of one year testator of will died in the year 1994 but defendant No. 1 in his written statement filed in the year 2010 had not made any averment with regard to execution of any Will in his favour. He would further submit that learned trial court also committed error in not sending the signature of the testator on Will for comparison before the handwriting expert. He would further submit that learned trial court also committed error in not sending the signature of the testator on Will for comparison before the handwriting expert. It has also been contended that the learned trial court also failed to consider that the attesting witness Awadesh Tiwari is aged about 45 years in the year 2016, therefore, on the date of alleged execution of the Will, the witness will only be 21 years of age, as such it could not be possible that he may in contact with the old person who is aged about 75 year to become a witness of the Will which creates doubt over the genuineness and correctness of the Will. He would further submit that defendants No. 1 and 6 and his witness had not brought any evidence with regard to pleading made by them in the counter claim that the Will was made available to the witness namely Ashish Kumar Dewangan when he was searching his old revenue records. Thus, there is serious doubt with regard to execution of the Will and would pray for allowing the appeal. 14. On the other hand, learned counsel for the respondents would submit that the finding recorded by the learned trial Court is just and proper which does not warrant any interference by this Court and would pray for dismissal of the appeal. He would further submit that the plaintiff has not filed any appeal against the judgment and decree dated 10.03.2017 by which the counter claim of the defendant No. 1 to 6 has been allowed, as such the judgment and decree passed by the learned trial Court has attained finality, therefore, the appeal is liable to be dismissed. 15. I have heard learned counsel for the parties and perused the documents available on record with utmost circumspection. 16. From the submission made above, the point emerged for determination is as under: “Whether the learned trial Court was justified in dismissing the suit filed by the plaintiff and the judgment and decree to the extent of allowing the counter claim filed by the defendant No. 1 to 6 attained finality in absence of any appeal filed by the plaintiff against the judgment and decree allowing the counter claim?” 17. The learned trial Court while deciding the issue No. 1 that whether the suit property is joint property or not has answered in negative. The learned trial Court while deciding the issue No. 1 that whether the suit property is joint property or not has answered in negative. The learned trial Court while relying upon the evidence of DW-2 Nagendra Wadher who has categorically stated that the suit property was self acquired property of Murar Ji Wadher as his grandfather used to run the restaurant (Bhojnalaya) with his coordination and after death of Murar Ji Wadher he is running the restaurant wherein neither the plaintiff nor other defendants have interfered in the said property and has held that suit property is not joint Hindu family property. Even otherwise, the plaintiff in his plaint has pleaded that it is an ancestral joint family property, therefore, it is for the plaintiff to plead and prove by recording cogent evidence. The plaintiff in his evidence has not substantiated these averments by adducing the evidence to this effect. On the contrary, the defendant has exhibited sale deed dated 27.04.1942 (Exhibit - D/2) which is sale deed executed between the grandfather of the plaintiff and defendants Murar Ji Wadher from Smt. Rajkumari w/o Ganesh Prasad Singhania. It is well settled position of law that the sale deed has presumptive value unless rebutted by cogent evidence no such evidence was brought on record by the plaintiff to question the genuineness of the Exhibit D/2. Thus, the finding recorded by the learned trial Court with regard to issue No. 2 that the suit property is not joint family property is legal, justified and does not warrant interference by this Court. 18. From the perusal of the judgment of the learned trial Court, it is quite vivid that it has allowed the counter claim of defendant No. 1 and 6 on the basis of Will executed by the grandfather of the defendant No. 1, as such, this Court has to examine whether the Will has been duly executed or proved before the trial Court or not. As such, in order to rely upon a Will in accordance with law, a Will has to be attested by two witnesses and either of the two attesting witness has to be examined by the profounder of the will. As such, in order to rely upon a Will in accordance with law, a Will has to be attested by two witnesses and either of the two attesting witness has to be examined by the profounder of the will. From the bare perusal of the Will (Exhibit D/1), it is quite vivid that two witnesses namely Awdhesh Tiwari, Narayan Dewangan have attested the Will and as per Section 69 of the Indian Evidence Act, 1872, if no such attesting witness can be found or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness atleast is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. In the present case two witnesses namely Narayan Dewagnan and Awdhesh Tiwari are the witness in which Awdhesh Tiwari was examined before the trial Court and son of late Narayan Dewangan, Ashish Dewangan has been examined before the trial Court. Ashish Dewangan in his evidence has categorically stated that in the Will his father has put his signature and his signature is known to him and there is no rebuttal to this evidence. The said witness in his cross-examination has categorically denied the fact that in the Will his father’s signature is not there or he is not aware about his father’s signature. The plaintiff to rebut the same has not adduced any evidence or document wherein the signature could be tallied, therefore, the learned trial Court appreciating the evidence of Ashish Dewangan has recorded its finding that the attesting witness signatures have been proved which is in accordance with Section 68 of Indian Evidence Act, 1872. Section 68 of the Indian Evidence Act, 1872 reads as under: “ 68. Section 68 of the Indian Evidence Act, 1872 reads as under: “ 68. Proof of execution of document required by law to be attested If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :[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.]” 19. The DW-2 Awdhesh Tiwari has stated that he has put the signature in the Will and also stated that executant of the Will has verified the facts of the Will and in their presence only he has signed, thereafter, he himself and Narayan Dewangan have put their signature. 20. The learned trial Court after elaborate discussion of the evidence, material on record has given its finding that the Will has been duly executed and proved in accordance with law applicable for execution of the Will. The manner of proving the will as well as its essentials has recently come up for consideration before the Hon’ble Supreme Court in case of Ramesh Chand (dead) vs. Suresh Chand and Others reported in 2025 INSC 1059 wherein the Hon’ble Supreme Court in paragraphs 23 to 26 has held as under: “23. …The term “Will” has been defined under Section 2(h) of the Succession Act, 1925 as “the legal declaration of a testator with respect to his property which he desires to be carried into effect after his death”. Its essentials have been further enumerated by this Court in the case of Mathai Samuel and Others v. Eapen Eapen (Dead) by Lrs. And Others7 thus: “12. Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. Its essentials have been further enumerated by this Court in the case of Mathai Samuel and Others v. Eapen Eapen (Dead) by Lrs. And Others7 thus: “12. Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials: (1) It must be a legal declaration of the testator's intention; (2) That declaration must be with respect to his property; and (3) The desire of the testator that the said declaration should be effectuated after his death. 13. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant's lifetime. Such a document is dependent upon the executant's death for its vigour and effect.” 7 (2012) 13 SCC 80 24. Will has also been expounded upon in the case of Suraj Lamp (supra), thus: “22. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. Registration of a will does not make it any more effective.” 25. This Court on the issue of the proof of Wills in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and Others AIR 1959 SC 443 has succinctly defined the contours as under: “18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” 26. Further, in the case of Meena Pradhan and Others v. Kamla Pradhan and Another (2023) 9 SCC 734 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. 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 fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required; 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 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. 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 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.”” 21. From the above discussion and law on this subject, it is quite vivid that the defendant No.1 is able to prove the Will in accordance with the law, as such, the finding of the learned trial Court that the Will is proved, is legal & justified and does not warrant any interference by this Court. Therefore, the cross appeal filed by the plaintiff challenging the finding recorded by the trial Court that the Will has been proved, deserves to be dismissed and accordingly it is dismissed. 22. Therefore, the cross appeal filed by the plaintiff challenging the finding recorded by the trial Court that the Will has been proved, deserves to be dismissed and accordingly it is dismissed. 22. Consequentially, the appeal filed by the appellant as well as cross appeal challenging the judgment and decree passed by the trial Court granting declaration in favour of defendants No. 1 & 6 on the strength of Will, is liable to be dismissed and accordingly it is dismissed. 23. A decree be drawn up accordingly.