1 2026:CGHC:17647 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 615 of 2025 Amritlal S/o Late Bhuvanlal Dewangan Aged About 65 Years R/o Village Lasatola, Tehsil Gunderdehi And District Balod, Chhattisgarh ... Appellant(s) versus 1. Smt. Nihoti Bai D/o Late Bhuvanlal Dewangan Aged About 70 Years R/o Village Suregaon, Tehsil Doundilohara, District : Balod, Chhattisgarh 2. Smt. Puhpi Bai D/o Late Bhuvanlal Dewangan Aged About 60 Years R/o Village Hadgahan, Tehsil Gunderdehi, District : Balod, Chhattisgarh 3. Smt. Bimla Bai D/o Late Bhuvanlal Dewangan Aged About 55 Years R/o Village Kasahi, Tehsil Doundilohara, District : Balod, Chhattisgarh 4. Smt. Amita D/o Late Bhuvanlal Dewangan Aged About 50 Years R/o Village Hadgahan, Tehsil Doundilohara, District : Balod, Chhattisgarh 5.State Of Chhattisgarh Through The Collector, Balod, District : Balod, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Vidya Bhushan Soni, Advocate For Respondent No. 1 : Mr. Ramesh Kumar Nayak, Advocate JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2026.04.21 11:26:41 +0530 2 For Respondent/ State : Mr. Anand Gupta, Dy. G.A. Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 17.04.2026 1. The defendant No. 1/ appellant, has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity CPC) against the judgment & decree dated 30.09.2025 passed by the Learned Principal District Judge, Balod, C.G. in Civil Appeal No. 17A/2021 (Amritlal Vs. Smt. Nihoti Bai & Ors.) arising out of the judgment and decree dated 09.11.2021 passed by the Trial Court in Civil Suit No. 42A/2016 (Smt. Nihoti Bai & Ors Vs. Amritlal.) whereby the learned trial Judge has allowed the suit of the plaintiff/ respondent. For the sake of convenience, the parties would be referred as per their status before the learned trial Court. 2. The plaintiff instituted the suit seeking declaration of title, partition, separate possession of their share, and a declaration that the registered Will dated 22.10.2009 allegedly executed in favour of defendant No.1 is illegal, void and inoperative pleading inter alia that the plaintiffs (respondents No. 1 to 3 herein) and defendant Nos.1 & 3 (appellant and respondent No. 4 herein) are members of the 3 same family and are the children/legal heirs of late Bhuvanlal Devangan, while defendant No.2 is his widow. Late Bhuvanlal was owner and in possession of agricultural lands situated at Village Lasotola, Tahsil Gunderdehi, District Balod, comprising 9 khasra numbers admeasuring 2.490 hectares, and at Village Basin comprising 5 khasra numbers admeasuring 1.490 hectares. According to the plaintiffs, the suit properties were ancestral properties inherited by Bhuvanlal from his forefathers/father, and no partition had ever taken place amongst the family members. It was further pleaded that Bhuvanlal died on 20.12.2014 and, for about six years prior to his death, he was old, seriously ill, physically weak and mentally unsound, having lost his capacity to understand matters properly, with weak eyesight and impaired hearing. Taking undue advantage of his physical and mental condition, defendant No.1 Amritlal, in collusion with others, allegedly got a registered Will dated 22.10.2009 executed in his favour in respect of the movable and immovable properties of Bhuvanlal, with the intention of depriving the plaintiffs of their lawful share. The plaintiffs further pleaded that on the basis of the said Will, defendant No.1 got his name mutated in the revenue records without impleading or issuing notice to the plaintiffs. On gaining knowledge thereof, the plaintiffs preferred a revenue appeal before the Sub-Divisional Officer, Gunderdehi, which came to 4 be dismissed by order dated 31.08.2016. Thereafter, as cloud had been cast over their rights, the plaintiffs filed the present civil suit contending that no valid Will was ever executed by Bhuvanlal in favour of defendant No.1 and that after the death of Bhuvanlal, the plaintiffs, along with defendant Nos.1 to 3, succeeded to the suit properties by inheritance and were entitled to equal share therein. 3. Defendant Nos.1 to 3, in their written statement, admitted the relationship between the parties and pleaded that the plaintiffs and defendant Nos.1 & 3 are the children of late Bhuvanlal, while defendant No.2 is his widow. It was contended that the lands situated at Village Basin were purchased by Bhuvanlal from his own earnings and constituted his self-acquired property. It was further pleaded that the land situated at Village Lasotola bearing Khasra No.644 admeasuring 0.08 hectare was also purchased by Bhuvanlal from one Bhagtaram, while the remaining lands had fallen to his share in partition amongst his brothers. The defendants further asserted that late Bhuvanlal, of his own free will and without any pressure or undue influence, voluntarily executed a registered Will dated 22.10.2009 in favour of his son, defendant No.1, in presence of witnesses, bequeathing his properties to him. On the strength of the said Will, the name of defendant No.1 was duly mutated in the 5 revenue records in respect of the movable and immovable properties situated at Villages Lasotola and Basin after proper proceedings before the revenue authorities. It was also pleaded that the plaintiffs had challenged the mutation order by filing a revenue appeal before the Sub-Divisional Officer, Gunderdehi, being Case No.023/06 of 2015-16, which was dismissed on 31.08.2016. According to the defendants, since the properties were self-acquired properties of Bhuvanlal and the registered Will was validly executed, defendant No.1 became the exclusive owner of the suit properties and the plaintiffs had no right, title or share therein. On these grounds, dismissal of the suit was prayed for. 4. After framing the issues, the trial Court, upon appreciation of the oral and documentary evidence, held that the plaintiffs and defendants were the Class-I heirs of late Bhuvanlal. It found that a part of the suit property situated at village Basin and Khasra No. 644 of village Lasatola had been purchased by Bhuvanlal from his own earnings, while the remaining land at village Lasatola had fallen to his share in an earlier partition among the brothers. The Court observed that after partition, such property assumed the character of separate/self- acquired property of Bhuvanlal. With regard to the registered Will dated 22.10.2009 propounded by defendant No.1, the trial Court held that although the plaintiffs failed to prove 6 forgery, the defendants also failed to prove due execution and attestation of the Will in accordance with law. The attesting witness did not satisfactorily depose that the testator had signed the Will in his presence or that the document was duly attested as required under Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act. The evidence further disclosed suspicious circumstances, including inconsistent signatures of the testator, uncertainty as to whether the Will was read over to him, and contradictory statements regarding the persons present at the time of execution. The Court further found that Bhuvanlal remained mentally and physically capable till shortly before his death, but since the Will was not duly proved, it could not confer exclusive title upon defendant No.1. Consequently, the Court treated Bhuvanlal as having died intestate, and held that his estate would devolve upon all Class-I heirs under Section 8 of the Hindu Succession Act. Accordingly, the suit was decreed by declaring the parties as co-owners of the suit property, declaring the unproved Will as not binding on the plaintiffs, and granting the plaintiffs 3/6 share with a right to seek partition and separate possession. 5. Aggrieved by the said judgment and decree dated 09.11.2021, the defendant No. 1 preferred a First Appeal under Section 96 of the Code of Civil Procedure before the 7 learned First Appellate Court. The learned First Appellate Court, on re-appreciation of the entire evidence on record, affirmed the findings recorded by the Trial Court and allowed the appeal by the impugned judgment. Hence, the present appeal. 6. Learned counsel for the appellant submits that both the Courts erred in law in placing the entire burden upon defendant No.1 to prove the registered Will dated 22.10.2009, while ignoring that the plaintiffs, who challenged the Will as forged and invalid, were first required to discharge their burden under Section 101 of the Evidence Act. It is contended that in absence of cogent evidence led by the plaintiffs regarding fraud, coercion, undue influence or incapacity of the testator, the Will could not have been discarded. It is further argued that the registered Will carried a presumption of genuineness and, therefore, the findings of the Courts treating late Bhuvanlal as having died intestate are contrary to law and the settled principles relating to burden of proof. 7. I have heard learned counsel for the appellant on the question of admission, and the impugned judgments and decrees passed by the learned trial Court as also the learned First Appellate Court have been carefully examined. 8. The contention raised by learned counsel for the appellant cannot be accepted. It is settled law that the burden to prove 8 a Will squarely lies upon its propounder and the person claiming benefit thereunder. Since defendant No.1 claimed exclusive title over the suit property on the strength of the registered Will dated 22.10.2009, it was incumbent upon him to establish its due execution and attestation in the manner required under Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act, and also to remove all suspicious circumstances surrounding its execution. Mere registration of the Will does not raise any conclusive presumption of validity so as to shift the burden upon the plaintiffs. As the appellant failed to discharge the said burden, no title could be claimed by him solely on the basis of the alleged Will. 9. From material available on record, it is apparent that the learned First Appellate Court, upon reappreciation of the entire oral and documentary evidence, affirmed the judgment and decree of the Trial Court and dismissed the appeal. It held that the appellant failed to establish that the suit properties were exclusively self-acquired properties of late Bhuvanlal Dewangan. The Court found that the land situated at Village Lasatola had devolved upon Bhuvanlal from his father in family partition and, therefore, retained the character of ancestral/joint family property, whereas the land at Village Basin was purchased by Bhuvanlal. The Appellate Court 9 further held that the registered Will dated 22.10.2009 propounded by defendant No.1 was not proved in accordance with law. It observed that the attesting witness did not support the due execution and attestation of the Will and admitted in cross-examination that he had not seen Bhuvanlal sign the document. Material inconsistencies were also noticed in the evidence of the defendant and the attesting witness regarding execution of the Will. In view of such suspicious circumstances and non-compliance with the legal requirements for proof of a Will, the Court held that the Will could not be relied upon. Consequently, it was held that after the death of Bhuvanlal, his legal heirs were entitled to succeed to the suit property, and the decree granting the plaintiffs their share and separate possession was just and proper. Finding no illegality or perversity in the Trial Court’s judgment, the appeal was dismissed and the decree dated 09.11.2021 was maintained. 10. The Supreme Court in the matter of Gopal Krishan and Ors. Vs. Daulat Ram and Ors. 2025 (2) SCC 804 laid down the principles which are required for proving of a WILL. Para 15 of the said decision reads as under:- 15. The requisites for proving of a will are well established. They were recently reiterated in a judgment of this Court in Meena Pradhan v. 10 Kamla Pradhan. See also Shivakumar v. Sharanabasappa, The principles as summarised by the former are reproduced as below: (Meena Pradhan cases, SCC pp. 737-38, para 10) "10.... 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 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 11 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 12 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 d 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 e 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. 13 Sharanabasappa". 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." 11. Even otherwise, the scope of interference in a Second Appeal under Section 100 of the Code of Civil Procedure is extremely limited. Interference is permissible only when the appeal involves a substantial question of law. Concurrent findings of fact recorded by both the Courts cannot be interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law. 12. In the present case, both the Trial Court and the First Appellate Court have concurrently recorded findings, on the basis of evidence available on record, that the appellants/ defendant failed to establish their case by placing cogent and sufficient material. The appellant has failed to demonstrate any perversity, illegality, or misapplication of law in the findings so recorded. 14 13. The questions sought to be raised in the present Second Appeal essentially relate to re-appreciation of evidence and challenge to concurrent findings of fact. Such questions do not give rise to any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure. 14. It is well established that when there is a concurrent finding of fact, unless it is found to be perverse, the Court should not ordinarily interfere with the said finding. 15. In the matter of State of Rajasthan and others Vs. Shiv Dayal and another, reported in (2019) 8 SCC 637, reiterating the settled proposition, it has been held that when any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. 16. Be that as it may, the argument advanced by learned counsel for the appellant and the proposed question of law cannot be regarded as satisfying the test of being ‘substantial question of law’ within the meaning of Section 100 of CPC. These questions, in my view, are essentially question of facts. The appellant failed to raise any substantial question of law which 15 is required under Section 100 of the CPC. In any event, the Second Appeal did not involve any substantial question of law as contemplated under Section 100 of the CPC, no case is made out by the appellant herein. The judgments impugned passed by the learned trial Court as as well as by the learned First Appellate Court are just and proper and there is no illegality and infirmity at all. 17. On perusal of the record of the case and in view of the above settled legal proposition, I find absolutely no merit in this appeal, as it does not involve any question of law, much less any substantial question of law within the meaning of Section 100 of the CPC. In my view, the judgment and decree passed by both the Courts appear to be just, proper and legal. The findings recorded are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and they does not call for any interference. 18. Consequently, the Second Appeal fails and is hereby dismissed resulting in upholding the judgment and decree passed by the learned Appellate Court. SD/- (Bibhu Datta Guru) Judge Jyoti